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.