Two emerging 21st Century technologies — genetic testing and genomic (or personalized) medicine and Web 2.0 — may create legal risks and headaches for employers due to the Genetic Information Non-Discrimination Act of 2008 (GINA), which went into effect on November 21, 2009. Specifically, the U.S. Equal Employment Opportunity Commission (EEOC), which has been tasked with crafting regulations to interpret and implement GINA, is looking at how employers use social media to research job applicants and employees and how “genetic information” that is voluntarily posted on personal websites and social networking sites should be treated if viewed by employers.
Title II of GINA prohibits both the use of individual genetic information in making employment decisions and any action by an employer to “request, require or purchase” genetic information, subject to certain limited exceptions. It also imposes strict confidentiality requirements when an employer or other covered entity comes into possession of genetic information. Title II applies to private and governmental employers with 15 or more employees. “Genetic information” is defined in the statute to include not only information about an individual’s genetic tests, but also genetic tests of family members and family medical history, including the manifestation of a disease or disorder in a family member. “Family members” include dependents as well as relatives of an individual or dependent from the first to the fourth degree. So, to take a completely hypothetical example, the fact that a maternal grandmother died of lymphatic cancer would be protected genetic information. This casts a very wide net indeed.
Employers Are Looking at You Online
The policies behind Title II of GINA are laudable: maintaining privacy and protecting individuals from job-related discrimination due to factors that are totally outside their control and not meaningfully related to their job qualifications or performance (but that may give rise to certain assumptions about insurance costs, work attendance, etc.). However, It’s not difficult to see how such an expansive definition of genetic information can create a legal minefield when blogs and social media are worked into the equation.
Blogs and social media provide the tools for us to share and publicize details about our personal lives, about where we are in this world and what we’re going through right now, as well as to foster an ever-greater interconnectedness that provides a substrate of meaning at the same time as it boosts our audience size. For these reasons, many employers, particularly those hiring for positions involving significant professional responsibility, customer or public exposure, or access to confidential information, Google job applicants and examine personal blogs and social media profiles as part of their due diligence process.
Generally speaking, employers are not legally prohibited from doing this and taking the findings into account when they make decisions about you (as long as the decisions aren’t based on certain impermissible factors defined by the law, such as race, gender, age, disability and now genetic background).
Therefore, if you plan to apply in the future for a financial services position managing the portfolios of wealthy clients, I would strongly advise you not to post a college photo of yourself drowning your svelte naked body in Yuengling. However humorous and compelling such a photo may be — and I really do like Yuengling! — it can easily be pulled up on the Internet years after it is posted, i.e., when you’re older, more professionally oriented and sober.
Finding Family Medical Information Online
All kidding aside, what if someone’s family member is ill and, out of an understandable desire to unburden herself and seek support from her user community, she shares information about the illness and the distress she is experiencing? If an employer then reads the page, does this constitute an illegal acquisition of genetic information?
GINA’s prohibition on requesting, requiring or purchasing genetic information excludes situations “where an employer purchases documents that are commercially and publicly available (including newspapers, magazines, periodicals, and books, but not including medical databases or court records) that include family medical history.” In its proposed regulations issued in March 2009, the EEOC expanded the commercially and publicly available document exception to also cover genetic information from documents that are available “through electronic media, such as information communicated through television, movies, or the Internet, except that a covered entity may not research medical databases or court records, even where such databases may be publicly and commercially available, for the purpose of obtaining genetic information about an individual.” (Such information also would not be covered by GINA’s confidentiality requirements, although it still could not be used to discriminate.)
The EEOC is seeking further comment on how genetic information acquired from personal websites such as blogs and social networking sites should be treated.
Some commenters have recommended a total exclusion for information on publicly available web pages, on the theory that employers should not be penalized for stumbling across information that an individual deliberately posts for the entire world to see (obviously, making an employment decision based on this information would still be forbidden).
Other commenters have urged the EEOC to take into account the site’s user restrictions and privacy settings: if an employer pries its way into a restricted user group (like in the Pietrylo case) whose members can view an individual’s family medical history, that looks more like an illicit attempt to acquire private or protected information than reading a publicly available website.
Still other commenters have suggested a regulatory standard that delves into the employer’s motives: is the employer searching sites for the specific purpose of obtaining genetic information? From the viewpoint of an attorney counseling businesses, I hope the EEOC avoids such a subjective test, since anyone could raise this accusation in a legal or administrative complaint with the flimsiest of evidence (or no evidence whatsoever). Due to the messy factual issue of intent it would be difficult for the employer to get the case dismissed before trial, meaning that costly litigation would be an ever-constant threat. However, the EEOC may already be thinking along these lines, since its proposed rules prohibit an employer from researching publicly available medical databases and court records for the purpose of obtaining genetic information.
Employers: Be Careful Where You Look
Even before the EEOC speaks on these issues, employers should take special note of GINA where online research plays a role in employment-related decisions. My advice to employers is to focus on the presence or absence of naked beer-waterfall photos and other content that is clearly relevant to a candidate’s judgment or his or her qualifications to hold a position; don’t go searching for (or dwell on or document) confessional posts about a sick aunt, however poignant and compelling they may be. If you do, you may risk a claim for either illegal acquisition of genetic information or (if the candidate is turned down or suffers some other adverse employment action) genetic discrimination.
Technology marches on, and, as always, the law struggles to keep up and adapt.