Social Media and Casual Conversations - GINA

The Genetic Information Nondiscrimination Act (GINA) generally prohibits covered employers from requesting, requiring, purchasing, or using genetic information about applicants, employees, former employees, or their family members.

Genetic information includes family medical history, genetic-test information, information about genetic services, and certain genetic information about a fetus or embryo. Information about an employee’s own manifested medical condition generally is not genetic information under GINA, although it may be protected medical information under the ADA or other laws.

GINA includes a limited exception for the inadvertent acquisition of genetic information. This exception can apply to information learned through workplace conversations, public social-media content, or other situations where the city did not seek the information. The exception does not authorize the city to use genetic information in an employment decision.

Social media
A city does not violate GINA merely because a supervisor, manager, or HR employee inadvertently learns genetic information through a social-media platform that the person was permitted to access by the profile owner.

For example, a supervisor may be connected with an employee on a social-media platform and see a post that the employee is raising money for a parent with Alzheimer’s disease. Because the supervisor was permitted to access the profile and did not seek the information, the acquisition may fall within GINA’s inadvertent-acquisition exception.

The exception may not apply if a city representative:

• Searches social-media sites for family medical history, genetic testing, inherited conditions, or genetic information.
• Uses social-media information to make a hiring, promotion, discipline, leave, accommodation, assignment, or other employment decision.
• Obtains access to a profile by bypassing privacy restrictions or using another person’s credentials.
• Requires an applicant or employee to provide passwords, login information, or access to restricted social-media content.
• Uses a third-party screening vendor to identify or report protected medical or genetic information.

The city should avoid conducting informal social-media searches of applicants or employees. If the city conducts social-media screening for a legitimate job-related reason, it should use a written policy, apply the process consistently, limit the review to job-related information, and use a trained HR reviewer or other firewall to prevent hiring decision-makers from receiving protected information. As a best practice, supervisors and hiring officials should not send friend or follow requests to applicants, should avoid requesting access to employees’ restricted social-media accounts, and should not use personal social-media knowledge in employment decisions.

Casual conversations
General expressions of concern generally do not violate GINA, even if they result in a supervisor or manager inadvertently learning family medical history or other genetic information.

Examples of ordinarily permissible general questions include:

• “How are you feeling today?”
• “Did they catch it early?”
• “How is your son doing?”
• “Will your daughter be okay?”

A supervisor may ask these types of ordinary questions in a casual conversation without violating GINA, even if the employee voluntarily responds with family medical information.

However, supervisors should not probe for genetic information. Examples of questions to avoid include:

• “Do other members of your family have that condition?”
• “Have you been tested for the condition?”
• “Is the condition hereditary?”
• “Did your parents or siblings have the same illness?”
• “Are you at risk of developing the condition?”
• “Have you received genetic counseling or genetic testing?”

These questions may constitute an unlawful request for genetic information.

City guidance Cities should train supervisors, HR staff, and hiring officials to:

• Avoid seeking family medical history, genetic-test information, inherited-condition information, or genetic-services information.
• Keep casual inquiries limited to general expressions of concern.
• Refer medical or accommodation issues to HR rather than asking follow-up questions about an employee’s condition or family history.
• Use the EEOC’s GINA safe-harbor notice whenever requesting medical information from an employee or health-care provider.
• Keep any medical or genetic information confidential and separate from the employee’s personnel file.
• Avoid using information learned through social media or conversation in any employment decision.

Key authority

• Genetic Information Nondiscrimination Act, 42 U.S.C. §§ 2000ff–2000ff-11.
• EEOC GINA regulations, 29 C.F.R. Part 1635.
• 29 C.F.R. § 1635.8, restrictions on acquisition of genetic information and the inadvertent-acquisition exception.