Genetic information generally 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 services that profile a person’s ethnicity and genetic makeup. Paternity testing is another common form of genetic testing that provides genetic information to be used to make legal determinations.
Genetic information discrimination, or genetic discrimination, is exactly that: the opportunity to discriminate against a person based on their genetic information. It can occur in the workplace if an employer treats an employee differently than the others based on their genetic profile. An example of how genetic information discrimination may occur would be if an insurance company drops their coverage of a woman after she is discovered to have a genetic dispotion towards breast cancer.
While genetic testing is allowed under certain circumstances, such as paternity testing, such information cannot be used in a discriminatory manner. Genetic information discrimination has the potential to affect anyone. This means that you or your loved ones may lose jobs or insurance coverage based on reported genetic abnormalities.
When Is Genetic Testing Allowed?
As previously mentioned, there has been a recent rise in voluntary genetic testing as at-home testing kits become more widely available. People are using these kits to determine parts of their ancestry and genetic makeup that they might not otherwise have access to. Additionally, genetic testing is frequently used to determine paternity when it is in question, such as when determining child support and custody rights.
Some state laws may allow employers to institute genetic testing requirements in the workplace. Genetic testing may be required or requested as part of the hiring process. An example of why an employer would 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 those that result from the unique characteristics of a person’s line of employment.
A main requirement for occupational disease claims is that the employee’s work is exposing them to risk factors that are different from those that the general public is exposed to. However, such genetic testing practices should not result in employment discrimination.
Criteria for valid genetic testing will likely vary from state to state, and may include but not be limited to:
- The actual genetic testing method utilized must be highly accurate;
- The genetic mutation or variant being tested for must be related to an increased susceptibility to an occupational disease;
- The employee must provide their consent to be tested prior to the administration of the genetic test;
- The 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 to attempt to lower other toxic factors in the workplace.
Once these conditions have been met, the employer may be justified in their termination of an employee whose genetic information indicates that they would be more likely to succumb to the disease.
Again, these laws and requirements may vary widely by state, profession, and federal requirements. In order to be absolutely safe and protected from discrimination lawsuits, it is imperative that both employers and employees ensure that all parties involved have consented to genetic screening.
Are There Laws In Place to Protect Against Genetic Discrimination? Are Federal Employees Protected?
Many states have some sort genetic non discrimination legislation in place. However, such laws differ greatly from each other in regards to their scope and focus. There is not yet any federal legislation in place, but has been proposed repeatedly and may pass in the near future. Such legislation would assure individuals and families that neither health care coverage nor employment status would be at risk if they participated in either research or clinical genetic testing.
Federal employees do enjoy some protection from genetic discrimination. Although federal legislation protecing the public as a whole has not yet been passed, there is an Executive Order that prohibits discrimination against any federal employees based on protected genetic information. This includes information about a request for or the receiving of genetic service.
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, begin by gathering all evidence that you believe would be useful when filing an employment discrimination lawsuit. An example of such evidence could be medical forms, documents, and related paperwork. You should also keep a log of the testing procedures that were implemented which could include testing dates, the nature of the exam, and your written account of termination or other effects of the testing.
In a discrimination lawsuit, remedies could include damages awards to reimburse lost wages, or a reinstatement to your former position before being terminated. It is important to be aware of your rights before consenting to any genetic testing. Your consent is the most important part of the testing process.
Do I Need an Attorney for Genetic Information Discrimination?
As can be seen, genetic testing can involve a variety of legal issues, such as employee privacy and worker’s rights. Therefore, you should consult with a skilled and knowledgeable employment attorney if you are facing genetic information discrimination.
An experienced employment attorney can help you understand your state’s laws regarding the matter, as well as any protections that may be afforded to you. Finally, an attorney will represent you in a court of law as needed.