Dan Harper is vice president, corporate counsel and secretary for Océ North America, Inc., a Canon Group Co. He is also president of the Chicago Chapter of the Association of Corporate Counsel. The views expressed herein are the opinions of the author and do not reflect the position or viewpoint of Océ North America Inc., Canon Inc. or any of the Océ or Canon companies.
“An employer may never use genetic information to make an employment decision because genetic information is not relevant to an individual’s current ability to work.” EEOC
When I first started practicing law, 1984 had come and gone. The Orwellian society predicted in the 1949 publication “Nineteen Eighty-Four” by George Orwell had not come into existence and our democratic society was alive and well. The possibility that someone could be discriminated against because of their genetic makeup had not even entered my mind.
Fast forward to the year 2009. That is the year Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits genetic information discrimination in employment, took effect. The Final Rule issued by the EEOC implementing the law became effective January 10 of this year. When I first heard about GINA, I thought it interesting that Congress was proactively taking steps to prohibit a type of discrimination that seemed a long way off, instead of reacting to abuses already occurring in the workplace. Without giving it much thought, I also generally agreed with the EEOC’s statement printed above. Why would anyone think someone’s genetic makeup is relevant?
As I read up on GINA, I also realized that there are fairly decent arguments supporting the review of a candidate’s genetic makeup before hiring them. Wouldn’t it be helpful to a candidate to know that they might be predisposed to certain diseases if exposed to chemicals they will encounter in the workplace? According to one article, there are approximately 50 disorders that are believed to increase a person’s susceptibility to certain diseases. For example, people with the sickle cell gene may be at increased risk of contracting the disease if exposed to carbon monoxide or cyanide. I would think the employee would want to know that he or she is at increased risk and make a conscientious decision as to whether or not to take the position. Employers too would benefit from genetic screening by reducing the number of work related injuries and time lost to illness. Health-care costs would go down too, everybody wins!
Some even argue that for certain jobs where hazardous substances are the only viable alternative to the production process, genetic testing for predisposed illnesses to such substances should be mandated. The argument can even be extended to impose a duty on the employer to test so as not to expose the employee to an environment that is likely to cause illnesses.
Does the fact that we can test people for predisposition to these diseases mean that we should test?
Does one’s predisposition to a disease really determine how well they will perform the task at hand? Or, does testing just allow the company to manage costs better by eliminating people who could otherwise do the job, but may get sick as a result? By testing, isn’t the company really doing exactly what it tries not to do in other similar circumstances – i.e. treating people differently based on their physical features over which they have no control? What happens as the ever expanding group of “unemployables” sucks more and more financial support from our government? Genetic testing is not a sure bet either. Some argue that the results are not reliable and that a test with erroneous findings could blacklist an otherwise healthy worker from gainful employment.
The beauty of understanding the human gene is found in how the knowledge will be used to treat disease, not prevent people from obtaining jobs. That is the reason the law was passed and that is the reason that in-house counsel must be aware of the law as our society continues to advance in the sciences.
“Deciphering the sequence of the human genome and other advances in genetics open major new opportunities for medical progress. New knowledge about the genetic basis of illness will allow for earlier detection of illnesses, often before symptoms have begun. Genetic testing can allow individuals to take steps to reduce the likelihood that they will contract a particular disorder. New knowledge about genetics may allow for the development of better therapies that are more effective against disease or have fewer side effects than current treatments. These advances give rise to the potential misuse of genetic information to discriminate in health insurance and employment.”
We in-house counsel are part of the process to ensure that science is used to the betterment of our society, not to harm the weak. We must read and understand the law and ensure that our companies do not abuse technology to the detriment of our people.