GINA Title II is short, and nearly everything tested sits in two subsections: the discrimination ban in 2000ff-1(a) and the acquisition ban in 2000ff-1(b) with its six exceptions.
Coverage and the number traps
GINA defines employer as "an employer (as defined in section 2000e(b) of this title)" and states no independent employee count. The 15-or-more-employees for each working day in each of 20 or more calendar weeks test is Title VII's, borrowed. Do not say the 15 is written into GINA itself.
- GINA: 15, by incorporation. Title VII: 15. ADA: 15.
- ADEA: 20. COBRA: 20.
Importing the ADEA-style 20 into GINA is the standard wrong answer, and so is saying GINA has no headcount test at all.
What counts as genetic information
Information about the individual's genetic tests, the genetic tests of family members, and the manifestation of a disease or disorder in family members, plus requests for or receipt of genetic services. Sex and age are expressly excluded. Ordinary medical information from a post-offer physical is not genetic information, and dropping the family-member components removes GINA's distinctive reach.
The two prohibitions
2000ff-1(a) makes it unlawful to fail or refuse to hire, discharge, or otherwise discriminate in compensation, terms, conditions or privileges of employment because of genetic information, and to limit, segregate or classify employees on that basis.
2000ff-1(b) bars requesting, requiring or purchasing genetic information about an employee or a family member, "except" in exactly six enumerated circumstances. Not four, not three, not nine:
- Inadvertent request or requirement of family medical history.
- Health or genetic services offered by the employer, including a wellness program.
- Family medical history to comply with FMLA certification at 29 U.S.C. 2613 or a state family and medical leave law.
- Commercially and publicly available documents.
- Genetic monitoring of the biological effects of toxic substances in the workplace.
- DNA analysis for law enforcement forensic purposes or human remains identification.
Conditions inside the exceptions
- Wellness (2): prior knowing, voluntary and written authorization; results to the employee and the licensed provider; the employer receives them only in aggregate form. Mandatory participation destroys voluntariness, and after-the-fact consent fails.
- Commercially available documents (4): newspapers, magazines, periodicals and books. It excludes medical databases and court records, so buying a commercial background database of family health history is outside the exception, with or without applicant authorization.
- Monitoring (5): the employee receives individual results; the employer receives results only in aggregate that does not identify individuals.
- FMLA (3): no written-authorization or aggregate condition attaches. Those belong to the wellness exception.