EEOC wrestles with social networking sites in proposed GINA regulations

The EEOC has joined the ranks of those who are trying to figure out exactly how the Internet – personal and social networking websites, in particular – fit into the antidiscrimination landscape. In March, the EEOC posted its proposed regulation implementing Title II of the Genetic Nondiscrimination Act of 2008 (GINA), specifically requesting comments concerning the “commercial and publicly available” exception to GINA’s prohibition against employer requests, requirements or purchases of genetic information about an employee or his or her family member.

GINA’s exception comes into play “where an employer purchases documents that are commercially and publicly available (including newspapers, magazines, periodicals, and books, but not including medical databases or court records) that include family medical history.” (Sec. 202(b)(4)). The proposed reg expands on the sources excepted from the prohibition by adding “through electronic media, such as information communicated through television, movies, or the Internet.” (29 CFR Part 1635.8(b)(4)). The agency invited comments about sources similar to those identified in the statute, such as personal websites or social networking sites, which might contain family medical history that should be included either among the excepted sources or the prohibited sources, such as personal websites or social networking sites.

Some comments pointed out the obvious: that personal websites, blogs and social networking sites are widely used by the public and, thus, should fall within the commercially and publicly available sources exception. Others were more nuanced and focused on the type of access required or the likelihood the site would contain genetic information, rather than a private vs. public distinction. Where the site is limited by group membership, requires an individual to permit access or has a likelihood of containing genetic information, the exception should be unavailable under this model. Still others suggested that the exception should not apply where there is specific intent to search for information about a particular individual or family member – otherwise, the exception would swallow the rule. As one commenter put it, “the regulation must regulate conduct and not simply selected sources of information.”

Moreover, excluding searches of medical databases and court records from the exception doesn’t go far enough, according to some commenters. Covered entities should be prohibited from engaging in conduct that will knowingly or likely lead to collection of genetic information, including Internet searches for personal information about employees and their families. Thus, covered entities should not be allowed to search for information about employees or applicants or their family members on social networking sites because of the likelihood that family history information will be included, under this theory.

Concern that covered entities would purchase consumer lists and profiles containing medical information made available by the large and lucrative consumer databroker industry was also expressed by some commenters. To prevent against acquisition of genetic information under the guise that it was incidentally obtained from a consumer databroker, this source of information should be treated in the same manner as medical databases, and thus, not subject to the exception, these commenters opine.

It’s worth mentioning that the EEOC’s proposed regulation also includes a confidentiality provision stating that although genetic information acquired through publicly available sources is not considered confidential genetic information, it may not be used to discriminate against an individual. (Sec. 1635.9(a)(4)).

Nonetheless, it would seem that a cautious, and perhaps skeptical, approach to the issue may be warranted. According to Market Watch, studies show that more than 40 percent of employers have trolled Facebook and other social networking sites to obtain information about applicants. Moreover, when they discover negative information on these sites, more than 80 percent of employers factor that information into their hiring decisions. When Title II of GINA takes effect on November 21, 2009, there will be one more factor for employers to take into consideration, or not.