When is an employer’s searching the internet about applicants and employees illegal? Until now, perhaps not at all, but GINA is about to change that. We posted recently that the EEOC released final regulations for Title II–the employment provisions–of GINA. Title II prohibits the use of genetic information in employment, restricts employers from requesting, requiring or purchasing genetic information, and limits employers from disclosing genetic information. An employer who “conduct[s] an Internet search on an individual in a way that is likely to result in a covered entity obtaining genetic information,” which includes family medical history, has engaged in illegal requesting, according to those regs. It is unclear what type of search would “likely result” in an employer’s obtaining genetic information. One commentator suggested that the EEOC in its regs specifically prohibit an employer from searching an employee’s name and a genetic marker. While the EEOC did not accept this specific recommendation, the language it adopted might encompass such a search. Alternatively, if an employer searches an applicant and is directed to a family genealogy page, it is hard to imagine that such a search would “likely result” in obtaining genetic information…unless the employer clicks on the “family medical history” tab.
Lest any employer representative be concerned about the information shared with “friends" on Facebook and other social media, who might also be applicants and employees, the EEOC noted specifically that there is no GINA violation when the supervisor or manager “inadvertently learns genetic information from a social media platform which he or she was given permission to access by the creator of the profile at issue (e.g. a supervisor and employee are connected on a social networking site and the employee provides family medical history on his page).”
Employers should also note that in a growing number of employment lawsuits, plaintiff’s seek and obtain “ESI,” electronically stored information, which may include emails and a record of internet searches. Make sure your ESI is not evidence of a GINA violation.