Title II of GINA prohibits the use of genetic information in employment, restricts employers from requesting, requiring or purchasing genetic information, and limits employers from disclosing genetic information. We posted recently that, according to the EEOC’s newly-issued regulations, an employer who engages in certain internet searches has illegally requested genetic information.
An employer who “actively listen[s] to third party conversations” and overhears genetic information, such as family medical history, also violates GINA, according to those regulations. “Inadvertent” acquisition of genetic information, which includes “passive” acquisition, is not illegal. The final regs state that where a manager or supervisor “learns genetic information about an individual by overhearing a conversation between the individual and others,” that acquisition is inadvertent. The proposed regs also noted that an employer “inadvertently acquires family medical history where a manager or supervisor overhears a conversation among co-workers that includes information about family medical history (e..g., a conversation in which one employee tells another that her father has Alzheimer’s disease).”
So a supervisor or manager’s “active” listening to a conversation which refers to genetic information is unlawful but “passive” overhearing is not. The regulations give no guidance as to how to distinguish one from the other, if such a difference even exists. This nuanced auditory distinction gives employers a strong reason to train supervisors and managers to make sure they do not engage in unlawful listening!