Academic journal article Labor Law Journal

Title II of the Genetic Information Nondiscrimination Act and Its Promulgating Regulations: Analyzing Employer Acquisition of Employee Genetic Information in the Context of Fairness and Privacy

Academic journal article Labor Law Journal

Title II of the Genetic Information Nondiscrimination Act and Its Promulgating Regulations: Analyzing Employer Acquisition of Employee Genetic Information in the Context of Fairness and Privacy

Article excerpt

I. Introduction

Given the scientific community's loud promises of how great insight and rewards will come from understanding our individual genetic makeup,1 employers may give much weight to genetic analysis when forming an opinion about an employee or applicant. If an employer is convinced that hiring and promotion decisions based on genetic analysis can increase workforce quality or lower costs, then it will more likely engage in genetically discriminatory behavior to maximize profits. To counter such tendencies, Congress created Title II of the Genetic Information Nondisclosure Act ("GINA"), which protects against employers acquiring and using genetic information to engage in this kind of workplace discrimination.

II. Fairness, Anti-Discrimination Employment Law, and Genetics

Employers' desire to genetically screen employees would hardly be novel or unexpected. Employers rationally want to hire those most likely suited to a given task. However, as a society, we strive to balance the goal of efficiency with the oft-competing values of equality and fairness.2 To this end, numerous federal and state antidiscrimination laws reflect society's attitude that it is sometimes proper to sacrifice efficiency in the name of promoting fairness in the workplace.

For instance, Title I of the Americans with Disabilities Act (ADA) prohibits employment discrimination based on manifested disabilities that do not prevent a person from performing work duties.3 Among other things, the ADA's protections apply to hiring, firing, promotions, pay, and training decisions.4 Employers must provide reasonable accommodation for any qualified employee capable of doing the job, and cannot deny employment based on the disability unless there is an associated undue hardship.5

In addition, the ADA's protections extend to at least some genetic discrimination. Under the ADA, a person is disabled if he or she "[1] has a physical or mental impairment that substantially limits one or more major life activity; [2] has a record of such impairment; or [3] is regarded as having such an impairment."6 The Equal Employment Opportunity Commission (EEOC), which is responsible for promulgating the Title I of the ADA, says that the third prong applies to "individuals who are subjected to discrimination on the basis of genetic information relating to illness, disease, or other disorders. Covered entities that discriminate against individuals on the basis of such genetic information are regarding the individuals as having impairments that substantially limit a major life activity."7 This language seems to imply that if an employer treats genetic information as a manifested condition, the employer would be liable under the ADA whether or not the condition is in reality manifested. However, it is unclear how a court would view this interpretation. Generally, the ADA only applies to actually manifested disabilities, genetically-related or otherwise.8

Another law designed to prevent potentially rational discrimination is the Age Discrimination in Employment Act (ADEA), which prohibits age-based discrimination against people forty years or older.9 Age discrimination might be rational because older people may have more health problems than younger individual, or their skill set may be outdated or even obsolete. (On the other hand, an employer might want to terminate an older, highly-paid employee in favor of a younger, lessexperienced employee willing to work for less.) As well as allowing for bona fide seniority programs,10 the ADEA, like the ADA, does provide exceptions for bona fide occupational qualifications.11

A large part of what society and the courts perceive as fair is based on whether a person has control over their condition. For instance, Title VII of me Civil Rights Act does not allow discrimination based on color or race, but does generally allow discrimination based on facial hair.12 Yet, for many jobs it would be hard to argue that the presence of facial hair is any more relevant to job performance than skin color. …

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