GPSolo Magazine - September 2006

Business And Commercial Law
The Science of Discrimination: Genetics in the American Workplace

By Sandra K. Lauro

Many ethical and legal issues have developed and continue to evolve around the use and misuse of genetic science. One such legal issue is the use of an applicant’s or employee’s genetic information by employers. Although there is a patchwork of state laws that attempt to regulate the use of genetic information by employers, no federal law directly regulates the ability of employers to use genetic information or make employment-related decisions based on genetic information. This article analyzes how select federal and state statutory or common laws are, or may be, implicated by the use or misuse of genetic information in the workplace.

Collecting genetic information at work.

It is common for many employers to require some form of medical examination of applicants and/or employees. A 2004 survey of companies found that 62 percent of the respondents required a medical examination of applicants, employees, or both. Most employers indicated that the tests were done to determine if applicants or employees had used illegal substances or could perform job duties. Surveys suggest that few companies have in the past or are currently requesting applicants and/or employees to undergo genetic tests.

As genetic testing procedures lower in cost with improved technology, it is possible—or likely—that more employers will implement such testing of applicants and employees. Even if employers do not engage in genetic testing, they may have the ability to gather the same or similar information about genetic predispositions from independent sources or from questions concerning an employee’s family history as part of preemployment or employment medical examinations.

Although surveys suggest that few employers currently conduct genetic testing, there are several reasons why they might consider the use of genetic tests or the use of genetic information of applicants and/or employees, including: to lower recruitment and training costs; to lower or anticipate health care costs; to ensure safety in the workplace; to gauge susceptibility and exposure to workplace toxins; and to determine the source of injuries or illness.

Legal issues

. No existing federal statute explicitly addresses genetic discrimination in the employment setting, but several existing federal laws may provide some protection to employees whose genetic information is improperly accessed or used.

Title I of the Americans with Disabilities Act (ADA) prohibits employers with 15 or more employees from discriminating against applicants or employees on the basis of a disability. Although the statute itself does not specifically address genetic discrimination, some commentators have argued that the law can be construed to offer protection to persons with genetic markers for diseases. Significantly, the Equal Employment Opportunity Commission, the agency responsible for enforcing the ADA, has taken a strong position on the law’s applicability to genetic testing and medical information gathering in the workplace. Whether a person with a genetic marker is considered a disabled person protected by the ADA is obviously a significant threshold issue. The law does not specifically identify certain diseases or traits as disabilities, but instead defines the term “disability” generally.

Employers who treat people with genetic markers differently than other employees may have liability under Title VII of the Civil Rights Act. Title VII prevents discrimination in employment based upon sex, race, national origin, nationality, color, or religion. There are two theories of potential liability: disparate treatment and disparate impact. Under a disparate treatment theory, a plaintiff generally must prove that the employer intentionally treated him or her differently because of a protected characteristic, such as race, color, or nationality. Although several genetic markers can be linked to certain racial or ethnic groups, an employer who discriminates against people with a genetic marker is usually not discriminating only against persons in certain protected groups because genetic markers are rarely associated with only one group of persons. However, at least one case exists where a group of employees established a prima facie case of a violation of Title VII when their employer only required persons in certain protected classes to undergo blood testing for the sickle cell trait and pregnancy. People with genetic predispositions also might seek recovery under Title VII using a disparate impact theory if an employer’s genetic screening has a disproportionate negative impact on a protected group.

The Occupational Safety and Health Act (OSHA) requires all covered employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” It focuses on “an employer’s duty to prevent hazardous conditions from developing in the employment itself or the physical workplace.” The taking of genetic information from an employee is considered a routine part of a standard medical practice designed to identify factors important to the employee’s general health. An issue that will likely arise if genetic testing of employees becomes more common is what responsibility under OSHA an employer has to an employee when that employer knows that an employee’s genetic markers make him or her more susceptible to harm from chemicals or toxins in the workplace.

State statutory and common-law issues.

More than half of the states now have laws addressing genetic testing and information gathering by employers. Many prohibit the use of genetic information in any employment decisions. Others prohibit employers from soliciting, requiring, or administering a genetic test to applicants or employees. Some allow genetic testing of applicants or employees if there is consent and a legitimate purpose for the test, such as monitoring the employee’s susceptibility to potentially toxic substances in the workplace.

Developed common-law theories such as negligence provide some guidance to employers on the legal issues they may encounter as they enter the field of genetic science. For example, some state courts have considered whether employers and/or their physicians have a duty to discover or disclose medical conditions of applicants and/or employees, and the decisions are relevant to the discussion of what types of common-law duties employers may have when administering genetic tests to applicants or employees.

General tort principles of reasonable reliance provide that a person’s failure to disclose the existence of a known danger may result in liability for negligence where the plaintiff is misled, resulting in an injury. Such nondisclosure may be the equivalent of a misrepresentation where it is to be expected that another will rely upon the appearance of safety. There is a possibility an employer may be liable under common-law theories if its physician does not discover a genetic predisposition during an employment-related exam. Many state courts have held that absent a physician-patient relationship, physicians hired by employers are not required to discover medical conditions of applicants or employees examined. However, a few courts have imposed upon an employer and its physician a duty to discover medical conditions of an applicant or employee.

Common-law invasion of privacy claims also can be fertile grounds for employees who are genetically tested without their informed consent. Genetic testing can be quite intrusive owing to the examination itself, as well as the information it can reveal. Although there are few published decisions on the subject of genetic testing of employees, it is likely that such testing programs could be challenged under common-law invasion of privacy theories.

 

Sandra K. Lauro is an employment attorney at Jones Day in Dallas, Texas. She can be reached at sklauro@jonesday.com.
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