North Carolina G.S. 95-28.1A: A Hiring and Firing Rule on Genetic Information, With No Remedy Clause

A Two-Part Act From 1997

Session Law 1997-350, Senate Bill 254, was titled "An act to prohibit discrimination in health insurance and employment based on genetic information." It paired two rules. Section 1 created G.S. 58-3-215 for health insurers. Section 2 created G.S. 95-28.1A in Article 3 of Chapter 95, the labor chapter's "Various Regulations" article. Section 3 then extended the retaliation statute to cover it. Section 5 made the act effective when it became law, and it was ratified on July 22, 1997, more than a decade before the federal Genetic Information Nondiscrimination Act of 2008.

The neighbor immediately before it in the General Statutes uses a near-identical frame. G.S. 95-28.1, enacted in 1975, bars refusing employment or discharging a person for possessing sickle cell trait or hemoglobin C trait. Section 95-28.1A borrows nearly the same list of covered actors and the same pair of prohibited acts, and adds genetic information to the template.

No Headcount and a Broad Subject

The opening clause of G.S. 95-28.1A(a) reads: "No person, firm, corporation, unincorporated association, State agency, unit of local government, or any public or private entity." The section sets no employee threshold. That contrasts with two North Carolina provisions nearby. The lawful-products statute, G.S. 95-28.2(a), counts employers with "three or more regularly employed employees," and the state's employment discrimination policy declaration, G.S. 143-422.2(a), is limited to employers "which regularly employ 15 or more employees."

Two Acts, Three Triggers

The section prohibits only two things: to "deny or refuse employment to any person" or to "discharge any person from employment." Three grounds make those acts unlawful.

• The person "having requested genetic testing or counseling services"
• "Genetic information obtained concerning the person"
• Genetic information obtained concerning "a member of the person's family"

The first ground turns on the request, in words that do not depend on what any testing showed. The third reaches beyond the employee's own biology to relatives, and the statute does not define "family" or limit it to any degree of relationship.

The limits are as notable as the coverage. Unlike the Iowa and Wisconsin statutes covered on this site, North Carolina's section does not forbid an employer from requiring, administering or requesting a genetic test, and it has no rule against collecting or holding genetic information. Compensation, promotion and other terms of employment are not named. The word "obtained" appears without any requirement about how the information was obtained or by whom.

The Definitions in Subsection (b)

Subsection (b) supplies three definitions. "Genetic information" is the broadest: "information about genes, gene products, or inherited characteristics that may derive from an individual or a family member." Nothing in that definition excludes routine lab work. The insurance companion, G.S. 58-3-215(a)(1), uses the same opening words but then excludes routine physical measurements, blood chemistries, blood counts, urine analyses, drug tests and HIV tests. The employment section carries no such exclusion.

"Genetic test" is a test for determining the presence or absence of genetic characteristics in an individual or a family member "in order to diagnose a genetic condition or characteristic or ascertain susceptibility to a genetic condition." "Genetic characteristic" covers genes or chromosomes, alterations or products of them, known to be a cause of a disease or disorder or associated with a statistically increased risk, and which are "asymptomatic of any disease or disorder."

A drafting detail: subsection (a) uses the phrase "genetic testing" and never the defined term "genetic test," and "genetic characteristic" feeds only the test definition. The "asymptomatic" language appears in the chain of definitions for a test and nowhere in the definition of information.

One Reservation: Discharge for Cause

The statute's single qualification is one sentence: "This section shall not be construed to prevent the person from being discharged for cause." Cause is undefined. G.S. 95-28.1 has the same reservation, and adds that it does not give those with the listed traits employment, promotion or layoff preference, a clause the 1997 section did not repeat.

There are no other exceptions in the text. It has no workplace-exposure or toxic-substance carve-out, no written-consent pathway, and no occupational qualification defense.

No Remedy Clause, and What REDA Adds

G.S. 95-28.1A names no damages, penalty, agency or cause of action. Compare the neighboring lawful-products statute, whose subsections (e) and (f) give an employee a civil action within one year, list lost wages, reinstatement and an order to offer employment, and allow fees to the prevailing party. Nothing comparable appears in the genetic section.

The 1997 act did add one path, aimed at retaliation. G.S. 95-241(a)(1)(f) lists G.S. 95-28.1A among the statutes for which no person may discriminate or retaliate against an employee who in good faith files a claim, complains, initiates an inquiry or testifies. A complaint goes to the Commissioner of Labor within 180 days under G.S. 95-242(a). G.S. 95-243 then permits a civil action, requires a right-to-sue letter for an employee, and lists injunction, reinstatement and lost wages, with treble damages for a willful violation of 95-241.

That route covers retaliation for invoking the section, not the underlying refusal to hire or discharge. No North Carolina appellate or federal decision construing 95-28.1A was found in the searches for this post; the absence is a report of what those searches returned, and the question of how a court would treat a claim based only on the section is not answered by its text. Likewise, 143-422.2's listed grounds, as read, do not include genetic information.

How It Sits Beside GINA Title II

The federal Genetic Information Nondiscrimination Act, described in more depth in our GINA Title II post, is broader in kind and narrower in coverage than the state section.

Federal law leaves state protection in place. 42 U.S.C. 2000ff-8(a)(1) states that the chapter does not limit the rights or protections of an individual under another federal or state statute "that provides equal or greater protection." The visible difference is scale: the state section's coverage language carries no minimum, where the federal definition of employer does.

Frequently Asked Questions