Discrimination Based on Genetic Information

There are federal and state laws that restrict New Hampshire employers' ability to collect and consider genetic tests and history when making employment decisions.

The Genetic Information Nondiscrimination Act (GINA) is a federal law that prohibits employment discrimination based on genetic information. Genetic information includes:

• Family medical history;
• Information about a person's genetic test results;
• Information about a family member's genetic test results;
• Receipt or requests for genetic services; and
• Genetic information about an unborn child.

Under GINA, employers may not use genetic information when they make employment decisions, such as hiring, firing, promotion, assignments, and compensation. For example, an employer would violate GINA if it reassigned an employee because it believed his job was too stressful due to the fact that heart disease ran in his family.

Under New Hampshire law, employers may not require or even ask employees to undergo "genetic testing" as a condition of employment. Employers also may not discriminate against employees based on any genetic testing that the employee has chosen to undergo.

Under this law, "genetic testing" is defined as follows: "a test, examination, or analysis which is generally accepted in the scientific and medical communities for the purpose of identifying the presence, absence, or alteration of any gene or chromosome, and any report, interpretation, or evaluation of such a test, examination, or analysis, but excludes any otherwise lawful test, examination, or analysis that is undertaken for the purpose of determining whether an individual meets reasonable functional standards for a specific job or task." This italicized exception in the statute relates to other laws, discussed on our page regarding disability discrimination, that restrict how employers may administer medical exams to workers. Thus, if a medical exam is lawful under federal and state disability discrimination laws, this genetic testing statute will not prohibit an employer from administering it.

New Hampshire's genetic testing law permits genetic testing when the employee asks to undergo genetic testing, in writing and with informed consent, for the purposes of (a) investigating a workers compensation claim or (b) determining the employee's susceptibility or level of exposure to potentially toxic chemicals or potentially toxic substances in the workplace. If an employee chooses to undergo genetic testing for these purposes, his employer may not use the information from the genetic testing against him.

Under both GINA and New Hampshire's law regarding genetic testing, you may pursue legal action against your employer if it violates your rights. You should contact an experienced employment lawyer, such as the lawyers at the New Hampshire Employee Rights Group, to discuss your options before pursuing a legal claim. The lawyers at the New Hampshire Employee Rights Group will provide you with a consultation.