Genetic Discrimination in the Workplace

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<strong>Philadelphia &mdash; Feb. 13</strong><br />There is a growing concern among employees that an employer&rsquo;s access to genetic information about them may lead to discrimination in the workplace, according to Pepper Hamilton, a multi-practice law firm.<br /><br />Although advances in genetic research have resulted in benefits such as helping to predict one&rsquo;s predisposition to a disease &mdash; allowing people to take proactive steps to protect their health &mdash; these developments also have brought renewed attention to the implications of genetic testing for the workplace.<br /><br />&ldquo;Employers must take proper precautions to avoid violating the rights of their employees and incurring potential litigation,&rdquo; said Amy G. McAndrew, an associate with Pepper Hamilton LLP, which represents management in employment-related claims and counsels employers on employment policies and practices.<br /><br />&ldquo;Employees are apprehensive that employers and health insurers may increase premiums for people who have certain genetic markers, or that insurers may deny, limit or cancel their insurance coverage,&rdquo; McAndrew said.<br /><br />The U.S. House of Representatives passed the Genetic Non-Discrimination Act in 2007, but the Senate has not yet voted on it. The act would protect people against discrimination based on their genetic information in health insurance and employment-related matters.<br /><br />In addition, 41 states have passed laws that protect individuals from genetic discrimination by insurance companies, and 32 states have enacted laws that protect individuals from genetic discrimination in the workplace.<br /><br />Among the states that have passed legislation to address genetic discrimination in the workplace and by health insurance companies are New Jersey, New York, Delaware, Massachusetts, Michigan and California.<br /><br />To ensure they do not violate their employees&rsquo; rights, employers should:<br /><br /><ul><li>Review their state&rsquo;s laws regarding genetic discrimination to ascertain compliance.</li><li>Evaluate their practices regarding genetic testing with respect to federal anti-discrimination laws.</li><li>Assess their application and hiring processes regarding physical and genetic exams.</li><li>Keep any such information of which they may be aware private and confidential and stored in a safe place.</li><li>If genetic testing is necessary, always get informed consent from employees, and advise them of the medical and nonmedical consequences of the tests.</li></ul><br />If passed, the Genetic Non-Discrimination Act would prohibit employers, employment agencies and labor organizations from:<br /><br /><ul><li>Refusing to hire applicants, discharging employees or discriminating against workers because of their genetic information.</li><li>Limiting, segregating or classifying employees in any way that would deprive or adversely affect them in light of their genetic information.</li><li>Requesting, requiring or purchasing genetic information, except in certain circumstances.</li><li>The act also would create specific guidelines for an employer&rsquo;s maintenance of genetic information and would prohibit its disclosure. </li></ul><br />&ldquo;The Genetic Non-Discrimination Act is not the first proposed legislation to address genetic discrimination,&rdquo; McAndrew said. &ldquo;For more than 10 years, Congress has considered a variety of legislation that would ensure such protection, but these bills were ultimately unsuccessful.&rdquo;<br /><br />Even without a federal genetic non-discrimination law, creative plaintiffs have alleged employment discrimination on the basis of genetics under existing federal legislation, including the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. <br /><br />&ldquo;For example, in 2001, the Equal Employment Opportunity Commission (EEOC) settled a claim against The Burlington Northern and Santa Fe Railway Company, alleging that the company violated the ADA by genetically testing or seeking to test 36 of its employees without their knowledge or consent. The EEOC argued that the tests violated the ADA because they were not job related and that any condition of employment based on such tests would be cause for illegal discrimination based on disability,&rdquo; said McAndrew. The company settled the claim with the EEOC for $2.2 million. <br />

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