In general, genetic information refers to an individual’s medical records that detail information about their gene profile. Genetic testing has become more easily available to members of the public through services that profile an individual’s ethnicity and genetic makeup.
Paternity testing is another common type of genetic testing that provides an individual’s genetic information that can be used to make legal determinations. Paternity testing is often used by a family law court to make a legal determination that is based on the individual’s genetic makeup.
As genetic testing becomes more easily available and accessible to members of the public, the potential for discrimination against individuals based on their genetic information also increases.
Genetic discrimination, or genetic information discrimination, is exactly what it sounds like, the opportunity to discriminate against an individual based on their genetic information. It may occur in a workplace if an employer treats an employee differently than other employees based on their genetic profile.
Discrimination typically occurs after an individual is already hired. It may, however, also happen when the individual is seeking employment.
One example of genetic information discrimination might be if an insurance company drops their coverage of a woman after she is discovered to have a genetic disposition towards breast cancer. Although genetic testing is permitted in certain situations, for example, paternity testing, this information cannot be used in a discriminatory manner.
Genetic information discrimination has the potential to affect any individual. This means an individual or their loved one may lose their job or insurance coverage based on reported genetic abnormalities.
When Is Genetic Testing Allowed?
As previously noted, there has been a recent rise in voluntary genetic testing due to at-home testing kits becoming more widely available. Individuals are using these kits to determine their genetic makeup and ancestry information they may not have otherwise accessed.
In addition, genetic testing is frequently used to determine paternity if it is in question, for example, when determining child support and custody rights. Some states may allow employers to institute genetic testing requirements in the workplace.
Genetic testing may be required as a part of the hiring process. One example of why an employer may request genetic testing is if certain gene mutations may cause an employee to be more susceptible to certain types of occupational diseases.
An occupational disease is caused by unique characteristics within a specific profession. One of the main requirements for an occupational disease claim is that the employee’s work exposes them to risk factors different from those that the general public is exposed to.
However, these types of genetic testing practices should not result in employment discrimination. The criteria for valid genetic testing may vary by state.
The criteria for a genetic test to be valid may include, but may not be limited to:
- The actual genetic testing method utilized must be highly accurate;
- The genetic mutation or variant that is being tested for must be related to an increased susceptibility to an occupational disease;
- The employee has to provide their consent to be tested before the administration of the genetic test;
- Occupational disease must be progressing so rapidly in the workplace that monitoring it without genetic testing would be inefficient; and
- It would be unduly expensive for the employer to be required to attempt to lower other toxic factors in the workplace.
Once these conditions are met, an employer may be justified in terminating an employee whose genetic information indicates that they would, in fact, be more likely to succumb to a specific disease. As previously noted, these requirements and laws may vary by state, profession, and federal requirements.
For an individual to be absolutely safe and protected from a discrimination lawsuit, it is essential that both an employer and employee ensure that all parties involved have consented to the genetic screening.
Are There Laws In Place to Protect Against Genetic Discrimination?
Numerous states have genetic non-discrimination legislation in place. These laws, however, may vary greatly from one another concerning their focus and scope.
The Genetic Information Non-Discrimination Act (GINA) was enacted on May 21, 2008. It protects individuals from discrimination that is based on their genetic information in health coverage and employment.
GENA has two Titles or sections. Title I prohibits discrimination that is based on generic information in health coverage.
Title II prohibits discrimination that is based on generic information in employment.
Are Federal Employees Protected?
Currently, there is no federal legislation in play. This legislation would assure individuals and families that neither their healthcare coverage nor employment status would be at risk if they participated in clinical genetic testing or research.
Federal employees, however, do enjoy some protections from genetic discrimination. Although federal legislation protecting the public as a whole has not yet been passed, an Executive Order is in place that prohibits discrimination against a federal employee based on protected genetic information.
This includes information related to a request for or receiving genetic services.
What if I Have a Claim for Genetic Information Discrimination?
If an individual believes that they have suffered genetic information discrimination and they would like to make a legal claim, they should begin by gathering any evidence that they think would be useful when filing an employment discrimination lawsuit. Examples of evidence used in these types of cases include:
- Medical forms;
- Documents; and
- Related paperwork.
Employment discrimination may be proven using many different means and types of evidence, which may include:
- Written evidence of the discrimination, including:
- any emails or other communications;
- company policies or handbooks;
- job offers and employment contracts; and
- other writings;
- Verbal communications, for example, statements made in an interview or other situations;
- Documents, such as pay stubs or human resources records that may support the plaintiff’s claim; and
- Various other types of evidence that are relevant to the case.
Examples of evidence that could be helpful in a genetic information discrimination case may include, but are not limited to:
- 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 that the individual believed discriminated against them.
In a discrimination lawsuit, there may be several remedies available, including a damages award to reimburse the individual for lost wages or reinstatement to the former position they had before they were terminated. An individual’s consent is the most important part of the genetic testing process.
Individuals must be aware of their legal rights before they consent to any type of genetic testing, as this consent may be used as a defense by the defendant in a discrimination claim.
Do I Need an Attorney for Genetic Information Discrimination?
As discussed above, genetic testing may involve various legal issues, including employee privacy and workers’ rights. If you have any questions or issues related to genetic information discrimination, it is important to consult with a discrimination lawyer.
Your lawyer can advise you of the laws in your state governing genetic information discrimination and any protections you may have. Your attorney will represent you in court if you decide to file a lawsuit.
