Academic journal article Vanderbilt Law Review

After GINA, NINA? Neuroscience-Based Discrimination in the Workplace

Academic journal article Vanderbilt Law Review

After GINA, NINA? Neuroscience-Based Discrimination in the Workplace

Article excerpt

INTRODUCTION .......................................................................................... 934

I. GENETIC INFORMATION NONDISCRIMINATION ACT OF 2008: LEGISLATIVE HISTORY, FINDINGS, AND MOTIVATIONS ................................................................................ 936

A. From the Human Genome Project to Genetic Testing: Uncovering the Human Blueprint ................ 937

B. Imperfect Prediction and Employer Misuse ............... 940

C. Inadequate Existing Federal Statutory Protections ...................................................... 943

D. Text of GINA ..................................................................... 947

II. THE POTENTIAL FOR PREDICTIVE NEUROIMAGING-BASED DISCRIMINATION ........................................................................... 949

A. From the Human Brain Project to Predictive Neuroimaging: Uncovering the Human Brainprint ......................................................................... 950

B. Imperfect Prediction and Employer Misuse ............... 959

C. Inadequate Existing Federal Statutory Protections ......................................................................... 961

III. ADDITIONAL CONSIDERATIONS RELEVANT TO NEUROSCIENCE-BASED DISCRIMINATION: NEUROENHANCEMENT ................................................................. 967

IV. NEURO INFORMATION NONDISCRIMINATION ACT ................... 970

A. Title I: Neuro Information, Employer Acquisition, and Discrimination .................................. 971

B. Title II: Neuroenhancement and Employment Discrimination ......................................... 975

CONCLUSION .............................................................................................. 977

INTRODUCTION

In 1990, the Human Genome Project ("HGP') was formed to decipher and sequence the human genome, to develop new tools to obtain and analyze genetic data, and to make the information widely available.1 Researchers completed the HGP in 2003 with the genetic technology and resources developed providing new opportunities for medical progress.2 In particular, discoveries about the genetic basis of illness and the development of genetic testing allowed for earlier diagnosis and detection of genetic predispositions to disease.3 These advances, however, also gave rise to the potential misuse of genetic information, as revealed by genetic testing, to discriminate against and stigmatize individuals.4 More specifically, for example, they created the opportunity for financially motivated employers to use genetic information to avoid employing workers likely to take sick leave, file for workers' compensation, or use health benefits. To fully protect the pubhc from discrimination and allay any concerns about the potential for discrimination, in May 2008, President George W. Bush signed the Genetic Information Nondiscrimination Act5 ("GINA") into law. This long-awaited statute paved the way for individuals to take full advantage of the promise of personalized medicine without fear of discrimination on the basis of genetic information acquired by employers.6

The field of neuroscience is following in the footsteps of genetics. Large research initiatives, such as the Human Connectome Project, are currently underway to map the axonal connections of the human brain and to correlate these circuits with disease and behavior.7 Discoveries about the neurological bases of disease have already allowed neuroscientists to use patterns of brain structure and function, as revealed by neuroimaging, to identify neural correlates of disease and predict an individual's predisposition to future disease.8 Most importantly, however, this neuro information is susceptible to the same forms of employer misuse as genetic information.9 In fact, Donald Kennedy, neurobiologist and once editor-in-chief of Science, has already made reference to a "brainome," similar to a "genome":

Far more than our genomes, our brains are us, marking out the special character of our personal capacities, emotions and convictions. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.