GINA’s Application to Caregiver Scenarios

In Part I of this series, I discussed the Genetic Information Nondiscrimination Act in the employment-law context. In this post, I’ll cover how GINA applies in the caregiver context. In Part III, I’ll address how GINA may mean trouble for employers who search out information about employees and applicants online.

With the exception of a handful of municipalities, caregivers are not protected as a class. Under current law, caregivers may be able to assert claims under three different statutes, each limited in their reach:

1) Title VII sex discrimination: female caregivers of young children may be able to assert sex discrimination claims where they are treated differently then male employees based on a bias or assumption about the woman’s caregiving responsibilities;

2) FMLA Interference/Retaliation: if the employer has more than 50 employees and the employee meets other criteria for coverage under FMLA, the employee may have an interference or retaliation claim under FMLA;

3) Association Provision of ADA: the employee cannot be discriminated against because of the disability of an individual with whom the worker has a relationship or association.

Claims under these statutes are limited. First, to present a sex discrimination claim, the plaintiff (usually a woman) has to present a very specific set of facts reflecting that she was treated differently based on assumption about her role as a caregiver/parent. FMLA has limited application, including employers with 50 or more employees, and a plaintiff who has been employed for more than 12 months, among other restrictions.

ADA associational claims have never really caught hold and there have been very few cases brought under this theory, even fewer brought successfully. Moreover, in order to bring an ADA associational claim, the plaintiff must first show that the loved one has an impairment, or is perceived as having an impairment, and that it meets the definition of “disability.”

Given the limitations of existing causes of action, GINA provides an important additional layer of protection for caregivers and gives employers another reason to be aware of the laws that expose them to potential liability.