Great DNA! You're Hired

Advances in genetic science have repeatedly grabbed headlines recently, from cloned calico cats to specially engineered food crops to promises that parents will soon be able to choose the physical characteristics of their future children. With the steady advance of technology and the increasing ease with which genetic material can be collected and analyzed, it is little wonder that some employers are contemplating using genetic testing as part of the employment process. Medical exams are themselves routine in many employment relationships, but it would misleading to assume that the same legal standards applicable to medical exams could be grafted onto genetic testing.

What makes genetic screening different is its ability to reveal not only existing conditions, but also potential ones. Genetic screening can reveal whether a person has a gene that predisposes him/her to a certain disease, or if there is a gene that will make the person hyper-susceptible to a condition if exacerbated in some way.

Employers medically screen applicants and employees for a variety of reasons. Some do so to lower recruitment and training costs. Employers may be reluctant to expend resources hiring and training an employee who is predisposed to developing a condition that will render him or her unable to work.

But genetic testing could theoretically be used to reduce workplace safety risks, searching out genetic predispositions that could endanger the individual, other workers, or third parties. Some employers may use genetic testing throughout the employment relationship to monitor possible effects of workplace chemicals or carcinogens on the workforce. Still others could use genetic tests as a baseline should an employee later bring a lawsuit claiming that he or she developed a disease because of the work environment.

What the Law Says

Included among the federal laws employers must consider when undertaking genetic testing or screening are the Americans With Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and the Occupational Safety and Health Act (OSHA).

The statutory text of the ADA does not specifically address genetic discrimination, but the Equal Employment Opportunity Commission opines that the ADA applies to certain scenarios in which employers use genetic information. To maintain a claim of discrimination under the ADA, an employee would have to establish that he or she possessed a genetic trait that rendered him or her 'disabled' under the law. Courts have said it is reasonable for employers to prefer certain 'nondisabling' physical attributes over others, based on the skills required of the job. However, courts have not ruled on the pseudo-medical issue of whether genetic characteristics are a 'nondisabling' physical attribute or a disability.

There is no doubt that inquiries about genetic characteristics or genetic testing would fall within the scope of the ADA's provisions regulating when employers can make 'medical inquiries' or require 'medical tests.' The law does not allow employers to make medical inquiries or require medical examinations of any sort at the pre-offer stage, but allows for limited testing post-offer and during employment.

Title VII likely protects employees who possess certain genetic markers that are associated with a certain sex or ethnic group from being treated differently from other employees. In such a situation, an employee would have to prove that disparate treatment was based on the genetic marker's existence and that the genetic marker correlated with the protected status, such as gender or ethnicity. Or, an employee may be able to prove that a seemingly neutral genetic screening policy is implemented in a way adversely impacting a protected group, such as women or African-Americans.

Because OSHA is concerned with safe working environments, the Act comes into play when genetic screening is used to monitor employee exposure to serious hazards. Like the ADA, the text of the law does not specifically address genetic screening, but the regulations for OHSA note that taking genetic information from an employee is considered a routine part of a standard medical practice designed to identify factors important to the employee's general health.

Several states have adopted laws on genetic testing of private-sector employees. These laws range in their protections and scope. Some state laws prohibit employers from using genetic information in any employment decision, while others allow genetic testing of applicants or employees if the employee consents and there is a legitimate purpose for the test, such as monitoring the employee's susceptibility to potentially toxic substances in the workplace.

Legal Traps

In addition to the federal and state laws that may come into play when employers utilize genetic information about applicants or employees, there are a whole variety of legal traps for the unwary. For example, an employer that does not adequately safeguard the information, and/or releases the information to third parties without the employee's permission, may be opening itself up to claims of negligence, invasion of privacy or other torts. Furthermore, an employer may find itself saddled with the 'legal' duty to discover potential genetic conditions and the duty to disclose that information to the unsuspecting employee.

There are plenty of reasons to be excited about the developing world of genetic science. The ability to identify certain disease-causing genes may ultimately lead to the elimination of some diseases or to improved treatment. Employers, though, should not jump the gun by basing employment decisions on the mere existence of a genetic marker. There is still a lot to be learned by science, by employers and by the courts that will interpret laws that were not drafted with the foreknowledge of these scientific advances impacting the workplace.

Sandra K. Lauro is a Labor and Employment attorney at Cowles & Thompson in Dallas. She is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization.

Advances in genetic science have repeatedly grabbed headlines recently, from cloned calico cats to specially engineered food crops to promises that parents will soon be able to choose the physical characteristics of their future children. With the steady advance of technology and the increasing ease with which genetic material can be collected and analyzed, it is little wonder that some employers are contemplating using genetic testing as part of the employment process. Medical exams are themselves routine in many employment relationships, but it would misleading to assume that the same legal standards applicable to medical exams could be grafted onto genetic testing.

What makes genetic screening different is its ability to reveal not only existing conditions, but also potential ones. Genetic screening can reveal whether a person has a gene that predisposes him/her to a certain disease, or if there is a gene that will make the person hyper-susceptible to a condition if exacerbated in some way.

Employers medically screen applicants and employees for a variety of reasons. Some do so to lower recruitment and training costs. Employers may be reluctant to expend resources hiring and training an employee who is predisposed to developing a condition that will render him or her unable to work.

But genetic testing could theoretically be used to reduce workplace safety risks, searching out genetic predispositions that could endanger the individual, other workers, or third parties. Some employers may use genetic testing throughout the employment relationship to monitor possible effects of workplace chemicals or carcinogens on the workforce. Still others could use genetic tests as a baseline should an employee later bring a lawsuit claiming that he or she developed a disease because of the work environment.

What the Law Says

Included among the federal laws employers must consider when undertaking genetic testing or screening are the Americans With Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and the Occupational Safety and Health Act (OSHA).

The statutory text of the ADA does not specifically address genetic discrimination, but the Equal Employment Opportunity Commission opines that the ADA applies to certain scenarios in which employers use genetic information. To maintain a claim of discrimination under the ADA, an employee would have to establish that he or she possessed a genetic trait that rendered him or her 'disabled' under the law. Courts have said it is reasonable for employers to prefer certain 'nondisabling' physical attributes over others, based on the skills required of the job. However, courts have not ruled on the pseudo-medical issue of whether genetic characteristics are a 'nondisabling' physical attribute or a disability.

There is no doubt that inquiries about genetic characteristics or genetic testing would fall within the scope of the ADA's provisions regulating when employers can make 'medical inquiries' or require 'medical tests.' The law does not allow employers to make medical inquiries or require medical examinations of any sort at the pre-offer stage, but allows for limited testing post-offer and during employment.

Title VII likely protects employees who possess certain genetic markers that are associated with a certain sex or ethnic group from being treated differently from other employees. In such a situation, an employee would have to prove that disparate treatment was based on the genetic marker's existence and that the genetic marker correlated with the protected status, such as gender or ethnicity. Or, an employee may be able to prove that a seemingly neutral genetic screening policy is implemented in a way adversely impacting a protected group, such as women or African-Americans.

Because OSHA is concerned with safe working environments, the Act comes into play when genetic screening is used to monitor employee exposure to serious hazards. Like the ADA, the text of the law does not specifically address genetic screening, but the regulations for OHSA note that taking genetic information from an employee is considered a routine part of a standard medical practice designed to identify factors important to the employee's general health.

Several states have adopted laws on genetic testing of private-sector employees. These laws range in their protections and scope. Some state laws prohibit employers from using genetic information in any employment decision, while others allow genetic testing of applicants or employees if the employee consents and there is a legitimate purpose for the test, such as monitoring the employee's susceptibility to potentially toxic substances in the workplace.

Legal Traps

In addition to the federal and state laws that may come into play when employers utilize genetic information about applicants or employees, there are a whole variety of legal traps for the unwary. For example, an employer that does not adequately safeguard the information, and/or releases the information to third parties without the employee's permission, may be opening itself up to claims of negligence, invasion of privacy or other torts. Furthermore, an employer may find itself saddled with the 'legal' duty to discover potential genetic conditions and the duty to disclose that information to the unsuspecting employee.

There are plenty of reasons to be excited about the developing world of genetic science. The ability to identify certain disease-causing genes may ultimately lead to the elimination of some diseases or to improved treatment. Employers, though, should not jump the gun by basing employment decisions on the mere existence of a genetic marker. There is still a lot to be learned by science, by employers and by the courts that will interpret laws that were not drafted with the foreknowledge of these scientific advances impacting the workplace.

Sandra K. Lauro is a Labor and Employment attorney at Cowles & Thompson in Dallas. She is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization.