In 2008, the Genetic Information Nondiscrimination Act (“GINA”) was passed, with the stated goal of “prohibit[ing] discrimination on the basis of genetic information with respect to health insurance and employment.” Section 203(a) of GINA makes it unlawful for employers “to fail or refuse to refer for employment . . . because of genetic information with respect to the individual,” “limit, segregate, or classify [those] individuals,” or “discriminate against [those] individuals.”
Title II, Section 202(b) makes it unlawful for an employer to request, require, or purchase genetic information with respect to an employee or family member of the employee. One such exception to this acquisition is “where an employment agency purchases documents that are commercially and publicly available . . . that include family medical history.”
The language of 202(b) makes it apparent that employers may not peruse an employee’s social network home page to acquire genetic information, even inadvertently. Central to this belief is the language of 202(b), specifically the terms “employment agency,” and “publicly available.” An “employment agency,” as referenced by GINA to Title VII, is “any person regularly undertaking...to procure employees to employers.” Thus, 202(b) apparently applies only to hiring and staffing agencies, with no room to allow employers the opportunity to purchase even publicly available documents. “Publicly available,” however, is not defined within GINA. A social website, arguably, is not a publicly available, depending on the particular options of the site in question. Facebook, for instance, requires users to pass friend requests and allows individual users to modify their page such that information is not readily available to certain individuals or groups of individuals. An individual who chooses to use Facebook may arguably choose to use it for those non-public features, and as such, intends the information housed on that site to be private. As such, it appears employers, and even employment agencies, unlawfully acquire genetic information under GINA when they find it on an employees social networking homepage.
For the Text of GINA, see: http://www.eeoc.gov/laws/statutes/gina.cfm