Discrimination is a legal term that describes what happens when an individual, is treated less favorably than another individual solely because of certain characteristics that they possess. These certain characteristics are known as protected classes, and include an individual’s:
- Age;
- Race;
- National origin;
- Religious beliefs;
- Gender;
- Disability;
- Sexual orientation
- Pregnancy; and
- Veteran status.
A person or company, such as an employer, may discriminate against individuals who belong to a protected class in many different ways. Examples of common employment settings where an individual could be discriminated against in an employment setting include, but are not limited to:
- The hiring stage;
- The recruiting stage;
- The training stage;
- Job assignments;
- Compensation;
- Promotions;
- Working conditions;
- Disciplinary actions;
- Referrals;
- Termination; and/or
- Instances of employee/employer harassment.
Under United States federal employment law, most private employers are prohibited from discriminating against any of the above protected classes. It is important to note that only protected classes are covered. State laws can provide additional protections to individuals. Importantly, federal laws regarding employment discrimination only apply to employers who employ more than fifteen people. Further, they do not apply to classes commonly covered by state law such as an individual’s marital status.
What Is Unintentional Discrimination?
According to federal discrimination law, there are two different types of discrimination:
- Disparate Treatment: Disparate treatment is the act of treating an individual differently because they belong to a protected class. Disparate treatment is illegal under federal law, and is commonly referred to as intentional discrimination.
- An example of disparate treatment in the employment setting is when a supervisor allows a group of employees to receive particular benefits, such as vacation time, but not all employees are entitled to the same benefits; and
- Disparate Impact: Disparate impact is also known as unintentional discrimination, and is generally based on policies. The policies may appear neutral on their face, but they actually favor or disfavor one class of individuals over another.
- An example of disparate impact would be a fire department implementing a written test to decide which employees should be promoted. Although a written test seems neutral, certain minorities may be disfavored due to the fact that they cannot purchase study materials. Further, the test itself may not actually be relevant to the job of firefighting.
Although disparate treatment and disparate impact differ from each other, both are variations of discriminatory practices. Disparate impact may be unintentional, but if an unintentionally discriminatory policy violates federal discrimination law, the individual or company responsible for the discriminatory actions will still likely be liable for the results of that discriminatory policy.
What Is Genetic Information Discrimination?
Genetic information refers to a person’s medical records that detail information regarding their gene profile. Genetic testing is becoming more easily available to the public through service providers that profile a person’s ethnicity and genetic makeup.
One of the most common services involving genetic testing is paternity testing. Paternity testing is often used by family law courts to make legal determinations based on an individual’s genetic makeup. As genetic testing becomes more easily available and accessible to the public, the potential for discrimination against people based on their genetic information also grows.
Genetic information discrimination, or genetic discrimination, occurs when an individual or company discriminates against another individual based on their genetic information. Genetic discrimination often occurs in the workplace, such as when an employer treats an employee differently than the others based on their genetic profile.
For example, if an employment sponsored insurance plan drops their coverage of an individual after that individual is discovered to have a genetic disposition towards breast cancer. Such an action could be determined to be genetic discrimination. While genetic testing is allowed under certain circumstances, such as paternity testing by court order, such information cannot be used in a discriminatory manner.
When Is Genetic Testing Allowed?
As previously mentioned, there has been a recent rise in the utilization of voluntary genetic testing as at-home testing kits become more widely available. Individuals are increasingly utilizing genetic kits to determine parts of their ancestry and genetic makeup that they might not otherwise have access to. Additionally, genetic testing is frequently being utilized to determine paternity when paternity is in question, such as when determining child support and custody rights in a family law case.
Some state laws may also allow employers to institute genetic testing requirements in the workplace. As such, genetic testing may be requested as part of the hiring process. An example of why an employer would be able to ask for testing would be if certain gene mutations could cause an employee to be more susceptible to specific types of occupational diseases. Occupational diseases are diseases that result from the unique characteristics of the type of work being performed.
A main requirement for occupational disease claims is that the employee’s work may expose them to risk factors that are different from those that the general public would be exposed to. However, genetic testing practices are not allowed to result in any type of discrimination, including employment discrimination.
Criteria for valid genetic testing will likely vary from state to state, and may include:
- The genetic testing method used must be highly accurate;
- The genetic mutation or variant being tested for must be related to an increased susceptibility to an occupational related disease;
- The employee must provide their consent to be tested prior to the genetic test being performed;
- The occupational disease must be so prevalent in the workplace that monitoring it without genetic testing would be inefficient; and
- Any alternative method that attempts to lessen the toxic factors in the workplace are unduly expensive.
Once all of the above conditions have been met, the employer may then be justified in their termination of an employee whose genetic information indicates that they would be more likely to succumb to the occupational related disease.
Once again, the laws and requirements regarding genetic testing may vary widely by state, profession, and federal requirements. Thus, in order to be absolutely safe and protected from discrimination and discrimination lawsuits, it is imperative that both employers and employees have mutually consented to the genetic screening.
Are There Laws In Place to Protect Against Genetic Discrimination?
Once again, most states have some sort genetic non discrimination legislation in place. However, these genetic discrimination laws differ greatly from each other in regards to their scope and focus.
There are federal laws in place that protect individuals from genetic discrimination in certain settings. The Genetic Information Nondiscrimination Act of 2008, is the federal law that is designed to prohibit some types of genetic discrimination. Specifically, the Act bars the use of genetic information in health insurance and employment.
As such, the Act prohibits group health plans and health insurers from denying coverage to a healthy individual or charging that individual higher premiums based solely on their genetic predisposition to developing a certain disease in the future. The Act also bars employers from using an individual’s genetic information when making hiring, firing, job placement, or promotion decisions.
What if I Have a Claim for Genetic Information Discrimination?
If you believe that you have experienced genetic information discrimination and would like to make a legal claim, it is important to gather all evidence that you believe would be useful when filing an employment discrimination lawsuit. Examples of evidence that could be helpful in a genetic information discrimination case include:
- Medical forms, documents, and related paperwork;
- Logs of testing procedures that were implemented including testing dates, the nature of the exams, and your written account of termination or other effects of the testing; and
- Paperwork or communications regarding any actions taken by the party which you believe discriminated against you.
If an individual is successful in their discrimination lawsuit, they could recover a damages award to reimburse them for their lost wages, or a reinstatement to their former position before they were terminated. It is important to be aware of your legal rights before consenting to any genetic testing, as consent may be utilized as a defense to the discrimination claim.
Do I Need an Attorney for Genetic Information Discrimination?
As can be seen, genetic testing can lead to a variety of different forms of genetic information discrimination. As such, if you have been subjected to genetic testing for employment or health insurance purposes you should consult with an experienced discrimination lawyer.
An experienced employment attorney will be knowledgeable regarding both federal and state anti-discrimination laws. Further, an experienced employment attorney will be able to initiate a civil lawsuit on your behalf against the discriminator, and also be able to represent you in court.
