Revisions to California’s Fair Employment and Housing Act

On January 1, 2012, the California Fair Employment and Housing Act (FEHA) will prohibit businesses from discriminating against applicants and employees based on genetic information.  The new law will impose California standards tougher than the federal 2008Genetic Information Non-Discrimination Act (GINA).

Both the federal and California law are aimed at curbing discrimination of qualified and performing employees due to genetic traits.  GINA applies to employers nationwide with 15 or more persons on payroll.  The new FEHA prohibitions will apply to California employers with five or more individuals on payroll.

GINA and FEHA define genetic information similarly, including a potential or existing employee’s genetic test results, the test results of a family member, the “manifestation of a disease or disorder” in the individual’s family, or the receipt of “genetic services” by an individual or his/her family.  Examples would 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.

A key difference between GINA and the upcoming FEHA provisions is the greater potential for damages under the California law.   GINA’s damages cap at $50,000 for small employers and at $300,000 for the largest ones.  There are no caps on FEHA damages.

These federal and California laws stem from a 1998 federal court decision, Norman-Bloodsaw v. Lawrence Berkeley Laboratory (9th Cir. 1998) 135 F.3d 1260, which found  the University of California’s conduct of medical tests on its employees to determine intimate medical conditions without their knowledge or consent violated employee rights to privacy.

The new law creates an immediate need for those California employers affected to educate themselves and to distribute information internally on the applicable company obligations and workers’ rights.  Actions should include policy and posted-notice revisions as well as training supervisors and human resources personnel to ensure compliance and to ensure the privacy of such genetic information.

For assistance revising your company’s anti-discrimination policies to include this and other workplace laws new for 2011, contact an employment legal specialist.