Genetic Predisposition: Caveat Employer!
 
July 1, 2000
 

GENETIC PREDISPOSITION: CAVEAT EMPLOYER!

With the rapid scientific developments in genetics, including the Genome Project to map human genes, it is now possible to predict which individuals might develop certain genetic disorders. Some of these conditions are life-threatening; others may cause attendance problems and increase the cost of group health insurance. In many instances, all that is necessary to make such a determination is a little blood, hair, or skin. The possibilities for harm are real: denial of insurance coverage, denial of educational opportunities and denial of employment are among them. One tragic example is an employee whose mother has Huntington’s disease, which is regressive and fatal. After the woman took a genetic test, which determined that she would develop this disease, her employment was terminated.

The Equal Employment Opportunity Commission takes the position that genetic predisposition is covered under the third, or “regarded as,” prong of the definition of “disability” in the Americans with Disabilities Act. The EEOC provides an example of a job applicant whose genetic profile reveals increased susceptibility to colon cancer. The applicant has no current symptoms and (unlike the woman with Huntington’s disease) may never develop colon cancer, but the employer withdraws a conditional offer of employment upon learning of the genetic predisposition because of concerns about productivity, attendance and insurance costs. That withdrawal, says the EEOC, is a violation of the ADA.

In February, President Clinton issued an executive order prohibiting federal departments and agencies from using genetic information in their employment practices. Federal employers may not require or request genetic tests as a condition to employment or receiving benefits. Obtaining or disclosing genetic information about employees or potential employees is prohibited, except when necessary to provide medical treatment, ensure work place health and safety, or provide researchers access to date. However, it is not discrimination to base employment decisions on a medical condition, as opposed to predisposition, if that condition prevents an employee from performing the job.

Pending in Congress is legislation which would prohibit group health plans or insurers from requesting, requiring, collecting or purchasing predictive genetic information other than from a health care provider to provide treatment to the individual involved. The bill provides civil penalties for anyone who discriminates against another in violation of these provisions.

Although the federal executive order and the pending legislation do not affect private employers at this time, most people expect the legislation to be passed sooner or later, and the ADA is here now. Because recent court decisions have curtailed the application of the ADA to individuals claiming disabilities, the plaintiffs bar is now focusing on the “regarded as” disabled prong as an easier way for plaintiffs to win these claims. Employers must be careful not to use information about genetic predisposition in making employment decisions. Indeed, it would be better if the employer specified clearly that no medical report should contain such information. In this kind of case, ignorance of a genetic predisposition is indeed bliss.

For more information please contact Mary Ann B. Oakley at 1-888-688-8500 or at maoakley@hklaw.com.

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