The California Genetic Information Nondiscrimination Act (SB559) Summary
General: The legislative intent of CalGINA is to greatly expand the protections offered by the federal Genetic Information Nondiscrimination Act (GINA, Pub. Law 110-233) which it calls “incomplete for Californians” (Section 1(j)). In a statement detailing CalGINA, State Sen. Alex Padilla (D-Pacoima) said, “Discrimination on the basis of genetic information is no less offensive than discrimination based on race, gender, or sexual orientation.” “California has a compelling interest in promoting and fostering the medical promise of genomics while relieving the fear of discrimination by strengthening laws to prevent it.” Genomic sequencing is quickly approaching the point where it will be widely affordable to the general public and, potentially, a covered insurance benefit.
CalGINA accomplishes its objective by amending several existing California laws to also prohibit discrimination on the basis of genetic information including two key California laws — the Fair Employment and Housing Act (“FEHA”) and the Unruh Civil Rights Act as well as the Business and Professions Code, the Education Code, the Elections Code, the Government Code, the Penal Code, the Revenue and Taxation Code, and the Welfare and Institutions Code.
Definitions: CalGINA mimics the federal Genetic Information Nondiscrimination Act (GINA, Pub. Law 110-233), in its definition of genetic information:
Genetic Information includes: genetic tests of an individual, genetic tests of an individual’s family members and the manifestation of a disease or disorder in family members of the individual (family medical history) and any request for, or receipt of, geneticservices, or participation in clinical research that includes genetic services,by an individual or any family member of the individual.
Genetic information does not include: information about an individual’s sex or age. (Note: these are already protected classes under state and federal civil rights laws.)
Unlike the federal GINA, which limits non-discrimination protections to the areas of employment and health insurance, CalGINA prohibits acquisition of genetic information and extends non-discrimination protection to additional areas, including the following:
1. Receipt of emergency medical services and care:
Existing law prohibits the provision of emergency services and care in a health facility from being based upon, or affected by, among other things, any characteristic listed or defined in the Unruh Civil Rights Act. Additionally, existing law provides that as a condition of licensure, each hospital is required to adopt a policy prohibiting discrimination in the provision of emergency services and care based on, among other things, any characteristic listed or defined in the Unruh Civil Rights Act. By adding genetic information to the protected characteristics listed in the Unruh Civil Rights Act, CalGINA would expand the bases upon which a health facility may not discriminate in the provision of emergency services.
2. Recording and enforcement of restrictive covenants affecting interests in real property, including sales and rentals (fair housing):
In California the opportunity to seek, obtain and hold housing is a civil right. The FEHA provides that an owner of any housing accommodation may not discriminate against or harass any person because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income or disability. (Cal. Gov’t Code, section 12955.) Owners also cannot inquire as to these characteristics when a person seeks to purchase, rent or lease any housing accommodation. CalGINA adds “genetic information” as an additional basis for nondiscrimination.
Under the FEHA, a person who holds an ownership interest of record in property that he or she believes is the subject of an unlawfully restrictive covenant based on race, color, religion, sex, sexual orientation, familial status, marital status, disability, national origin, source of income, or ancestry, may record a restrictive covenant modification (“RCM”). Under current law, the RCM must include a copy of the original document with the illegal language stricken. Before recording the modification document, existing law requires the county recorder to submit the modification document and the original document to the county counsel, who is required to determine whether the original document contains an unlawful restriction based on race, religion, sexual orientation or the other protected characteristics noted above. CalGINA would also require the county counsel to determine if there exists an unlawful restriction based on genetic information.
3. Receipt of services, access to facilities, accommodations, and privileges “in all business establishments of every kind whatsoever” (business and professions):
The Unruh Civil Rights Act (Cal. Civil Code, section 51 et seq.) declares that Californians “are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever,” and prohibits business establishments from discriminating on the basis of sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status or sexual orientation. CalGINA makes “genetic information” an additional basis for prohibited discrimination.
4. Distribution of alcoholic club licenses
5. Provision of financial assistance for purchase or construction of housing (mortgage-lending)
6. Participation of any state-funded or state-administered activity or programs:
Existing law prohibits discrimination on specified bases against any person in any program or activity conducted, operated, or administered by the state or by any state agency, or that is funded directly by the state, or that receives any financial assistance from the state. CalGINA amends Government Code section 11135 to further prohibit the unlawful denial of full and equal access or discrimination under such programs or activities on the basis of genetic information.
7. Qualification for licensing that has an adverse impact on any class by virtue of its genetic information.
8. Seeking, obtaining and holding employment:
The California Fair Employment and Housing Act (Cal. Gov’t Code, § 12920 et seq.), protects the right and opportunity of all persons to seek, obtain and hold employment regardless of the person’s race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age or sexual orientation. On these bases, an employer cannot refuse to hire or employ a person, exclude a person from a training program, harass, discharge a person from employment, or discriminate against a person in compensation or in terms, conditions or privileges of employment. Employers must also take all reasonable steps necessary to prevent discrimination and harassment from occurring. CalGINA adds “genetic information” as a prohibited basis for discrimination.
Before filing a lawsuit under the FEHA for genetic or any other type of discrimination, an employee must exhaust his or her administrative remedies with the California Department of Fair Employment and Housing.This provision applies to all employers with 5 or more employees (GINA applies only to employers with 15 or more employees).
CalGINA makes conforming changes to other statutes as well, including Section 3228 of the Education Code (public school access to resources to combat bias), the Government Code (e.g., section 12944, preventing a licensing board from requiring any examination or establishing any other qualification for licensing that has an adverse impact on any class by virtue of its genetic information, among other stated characteristics), Elections Code section 354.5 (signature stamps), and the Revenue and Tax Code (e.g., section 24343.2, prohibiting clubs from restricting membership or the use of its services or facilities).
Damages: Unlike the federal GINA which sets monetary limits on damage claims, CalGINA can allow for unlimited monetary damages, such as back pay; future lost earnings; emotional distress damages; punitive damages; and attorneys’ fees and costs, including expert witness fees.