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Preempting Discrimination: Lessons from the Genetic Information Nondiscrimination Act

Posted by on Saturday, March 27, 2010 in Articles, Volume 63, Number 2, Volumes.

The Genetic Information Nondiscrimination Act (“GINA”), enacted in May 2008, protects individuals against discrimination by insurance companies and employers on the basis of genetic information. GINA is not only the first civil rights law of the new millennium, but it is also the first preemptive antidiscrimination statute in American history. Traditionally, Congress has passed retrospective antidiscrimination legislation, reacting to existing discriminatory regimes. However, little evidence indicates that genetic-information discrimination is currently taking place on a significant scale. Thus, unlike the laws of the twentieth century, GINA attempts to eliminate a new brand of discrimination before it takes hold. This Article provides a detailed look at this unprecedented new statute, beginning with its initial introduction in 1995. Next, the Article examines the justifications for passing preemptive genetic-information discrimination legislation, concluding that Congress had twin objectives: a research justification and an antidiscrimination justification. Lastly, the Article explores the implications of passing antidiscrimination legislation absent a history of discrimination. It concludes that GINA’s preemptive nature may be both its greatest attribute and its deepest flaw.