On September 6, 2011, California Gov. Jerry Brown signed into law the California Genetic Information Nondiscrimination Act (CalGINA), which ultimately took effect on January 1, 2012. CalGINA amended anti-discrimination laws already in effect to prohibit genetic discrimination in areas, such as housing; mortgage lending; employment; education; and public accommodations. CalGINA provides broader protections from genetic discrimination than does the federal Genetic Information Nondiscrimination Act (GINA) of 2008, which is limited to employment and health insurance coverage.
CalGINA directly amends the California Fair Employment and Housing Act (FEHA), which protects the employment rights of those in protected classes including race, national origin, physical disability, age, and sexual orientation. Specially, CalGINA adds “genetic information” as a prohibited basis for employment discrimination under FEHA.
Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about the manifestation of a disease or disorder in an individual’s family members (i.e. family medical history). Examples include results of tests for genetically carried diseases, such as sickle cell anemia, the contracting of a gene-based disease by a relative, and even an employee’s or family member’s seeking such testing. Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. Genetic information also includes an individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual, and the genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.
Under GINA, it is also illegal to harass a person because of his or her genetic information. Harassment can include, for example, making offensive or derogatory remarks about an employee/applicant’s genetic information, or about the genetic information of a relative of the employee/applicant. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so severe or pervasive that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area of the workplace, a co-worker, or someone who is not an employee, such as a client or customer.
Under GINA, it is illegal to fire, demote, harass, or otherwise “retaliate” against an employee/applicant for filing a charge of discrimination, participating in a discrimination proceeding (such as a discrimination investigation or lawsuit), or otherwise opposing discrimination.
In order to bring a civil claim under FEHA, an individual must first file a charge with the California Department of Fair Employment and Housing (“DFEH”), which enforces the FEHA. Employees may bring a FEHA claim within one year of the alleged unlawful action, and may extend the deadline by ninety more days if the claimant only learns of the unlawful act after one year has lapsed since its occurrence. In order to bring a civil claim under GINA, an individual must first file a charge with the Equal Employment Opportunities Commission (“EEOC”). Employees typically have 180 days to file a charge of a violation of GINA with the EEOC.
A successful GINA or FEHA plaintiff can recover damages including back pay, compensatory damages, damages for emotional distress, and pain and suffering, and attorneys’ fees. Under GINA, both compensatory and punitive damages are statutorily capped based on the number of individuals employed by the employer. For employers with 15-100 employees, a plaintiff may be awarded no more than $50,000 in compensatory damages and no more than $50,000 in punitive damages for willful violations. For employees with 101-200 employees, the cap for each is $100,000. For employers with 201-500 employees, the cap is $200,000. For all other employers, the cap is $300,000 for each category of damages. Under FEHA, compensatory and punitive damages are uncapped.
Contact the experienced lawyers at Kingsley & Kingsley if you have questions about your rights or feel that your employer has violated GINA or FEHA. With the right legal team, proving discrimination can be done. There are a variety of ways that the qualified California lawyers at Kingsley & Kingsley can assist you. Take the first step to protecting yourself and stopping this hurtful and illegal behavior. Take advantage of a free initial consultation to discuss your specific case by calling the toll free number (888) 500-8469 or clicking here to contact us regarding your case.
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