Employers should brace themselves for more lawsuits alleging violation of the Genetic Information Nondiscrimination Act, many observers warn.

Some experts believe, though, that several months after its enactment, many employers still may be inadequately prepared to comply with provisions of Title II of GINA, which prohibits employment discrimination based on genetic information.

In a potentially precedent-setting case, a Connecticut woman last month filed a claim with the Equal Employment Opportunity Commission alleging her employer violated the law when she was terminated this year after undergoing a preventive double mastectomy (see story, page 24).

Title II of GINA, which went into effect in November, prohibits using genetic information in making employment decisions, restricts acquisition of genetic information by employers and strictly limits its disclosure. Title I of GINA, which addresses the use of genetic information in health insurance, goes into full force at the end of May.

Narrow exceptions to the law include the inadvertent acquisition of genetic information, such as when a manager or supervisor overhears someone talking about a family member's illness. In addition, genetic information can be obtained as part of health or genetic services, including wellness programs offered by employers, on a voluntary basis if certain requirements are met.

The EEOC is expected to issue final rules in connection with GINA shortly, although a specific date has not been set, said EEOC Assistant Legal Counsel Chris Kuczynski.

To date, the EEOC has received about 80 GINA-related claims, said Peggy R. Mastroianni, the agency's associate legal counsel. Typically, she said, such claims also cite Americans with Disabilities Act violations.

“We are now seeing more charges that allege not only improper acquisition or disclosure, but adverse employment actions,” such as discharges, although it is unclear whether the adverse employment action “stems from the GINA part of the claim or the ADA part of the claim,” Ms. Mastroianni said.

She and others say they expect more GINA-related claims.

Paul E. Starkman, a partner with law firm Arnstein & Lehr L.L.P. in Chicago, said there will not necessarily be a tidal wave of GINA litigation, but as more people become aware of it, employers will “be getting more and more inquiries and complaints, and they will be opening themselves up to potential claims and litigation” if they fail to take the appropriate steps.

“It may take some time before we see a big wave of claims,” said Emily S. Borna, a partner with law firm Jackson Lewis L.L.P. in Atlanta, “but I do think we will see more and more.”

She said a particular challenge for employers is what to do when genetic information is volunteered, and then there is an adverse job action. “Then it becomes a burden for the employer to show” the genetic information “doesn't factor in,” Ms. Borna said.

Wendy Lazerson, a partner with law firm Bingham McCutchen L.L.P. in East Palo Alto, Calif., said “employers have to be careful” of being “set up” by employees volunteering genetic information and then alleging that was the cause of a subsequent adverse job action.

“I think the EEOC, under the current administration, is being very proactive” in pursuing claims under its jurisdiction, said Daniel J. Burnick, a shareholder with law firm with Sirote & Permutt P.C. in Birmingham, Ala. In addition, more employees “are looking to the EEOC and/or the court system in an attempt to either protect their jobs or receive compensation should they lose their jobs.”

Ilyse W. Schuman, a shareholder with law firm Littler Mendelson P.C. in Washington, said some employers are not well-prepared to deal with GINA.

“I'm not sure that employers actually realize either the depth, or the breadth, of GINA's reach in terms of the genetic information it includes, for example family medical history as well as the individual's own genetic information and...the fact that GINA includes not only nondiscrimination requirements but also restrictions on the collection and disclosure of genetic information,” Ms. Schuman said. “It's critical that employers educate themselves and train their managers on the application of the new law to reduce any potential exposure they may have.”

The law passed during a period of “economic turmoil,” so “I don't think (employers have) put as much emphasis on it as perhaps they should,” Mr. Starkman said. “I don't see this huge swell of compliance activity to make sure that they're not going to run afoul of it later.”

“Going forward, employers will have to change their policies in order to prohibit discrimination based on genetic information,” said Erin T. Fitzgerald, an associate with law firm Fox Rothschild L.L.P. in Philadelphia. “They'll have to have the proper notices posted in the workplaces and, if they have any sort of wellness program, they'll need to ensure that also complies with GINA.”

Employers should be sure genetic information is disseminated only on a need-to-know basis, said Clifford S. Anderson, a partner with law firm Hellmuth & Johnson P.L.L.C. in Eden Prairie, Minn.

“You can't take adverse action” against an employee based on information you do not have, he said.

Under GINA, employers must not ask for personal medical information during annual enrollments and, if they ask for it afterwards, do not provide any sort of incentive, such as a reduced premium, for answering genetic-related questions, said Leslye Laderman, St. Louis-based national leader of compliance services in Buck Consultants L.L.C.'s health and productivity practice. Employers' vendors also should be made aware of this, she said.

However, Dennis Westlind, a partner with law firm Stoel & Rives L.L.P. in Portland, Ore., said, “The number of employers who are using genetic information in employment decisions is small to minuscule.”

“I really don't expect it to be a growth industry for employment lawyers,” Mr. Westlind said. “This is not going to be the next ADA or the next Title VII” of the Civil Rights Act.