Genetic Nondiscrimination Laws in Employment

By Joseph J. Wang
Jwang@central.uh.edu

Both federal and state laws protect individuals from genetic discrimination in the workplace. At the federal level, the Americans with Disability Act (ADA) prohibits discrimination in employment on the basis of disability. The U.S. Equal Employment Opportunity Commission (EEOC) is charged with enforcing workplace laws including the ADA. The following case illustrates how federal law works to protect employees from genetic discrimination.

On February 9, 2001, the EEOC filed its first lawsuit challenging genetic testing. It petitioned in federal district court to enjoin Burlington Northern Santa Fe Railroad, a Texas-based railroad, from engaging in genetic testing of its employees who had submitted claims of work-related carpal tunnel syndrome. The EEOC alleged that workers were not told of the genetic tests, nor did they consent to such testing. At least one worker refused to provide a blood sample based on his suspicions of genetic testing and was threatened with immediate discharge.

The EEOC takes the position that the railroad’s actions violated the ADA and that "employers may only require employees to submit to any medical examination if those examinations are job related and consistent with business necessity. Any test which purports to predict future disabilities, whether or not it is accurate, is unlikely to be relevant to the employee’s present ability to perform his or her job." See http://www.eeoc.gov/press/2-9-01-c.html.

On April 19, 2001, the EEOC announced that it had settled its case against the railroad. As part of the agreement, the railroad will not: directly or indirectly require its employees to submit blood for genetic tests; analyze any blood previously obtained; evaluate, analyze or consider any gene test analysis previously performed on any of its employees; or retaliate or threaten to take any adverse action against any person who opposed the genetic testing or who participated in EEOC proceedings. See http://www.eeoc.gov/press/4-18-01.html.

In addition to the ADA, federal law "prohibit[s] discrimination against [federal] employees based on protected genetic information or information about a request for or the receipt of genetic service." On February 8, 2000, President Clinton signed Executive Order 13145, an order that prohibits federal departments and agencies from using protected genetic information in making employment decisions. See Exec. Order No. 13145, 65 Fed. Reg. 6875 (Feb. 10, 2000).

And although not yet law, Congress is considering a bill that would ban genetic discrimination in health insurance and employment. On February 13, 2001, the Genetic Nondiscrimination in Health Insurance and Employment Act (S.318 & H.R.602) was introduced in the Senate by Senator Tom Daschle (D-SD) and in the House by Representative Louise Slaughter (D-NY).

This legislation would prohibit genetic discrimination in hiring, firing, compensation, and other terms of employment. With few exceptions, it would also be unlawful for an employer "to request, require, collect or purchase protected genetic information with respect to an individual or a family member of the individual…." The same or similar provision applies to employment agencies, labor organizations, and training programs. See full text available at http://thomas.loc.gov/.

Protections against genetic discrimination in employment exist in state law. The following table is a 50-state survey of state anti-discrimination laws in employment:
 

 
 

STATE

Prohibits genetic discrimination in employment
Prohibits requiring genetic testing1
Prohibits requesting genetic testing and/or information1

STATUTE

Alabama        
Alaska        
Arizona
X
   
Ariz. Rev. Stat. Ann. §41-1463
Arkansas        
California
X
X
X
Cal. Gov’t Code §12940; Cal. Ins. Code §§742.405,10123.3
Colorado        
Connecticut
X
X
X
Conn. Gen. Stat. Ann. §46a-60
Delaware
X
   
Del. Code Ann. tit.19, §711
District of Columbia        
Florida        
Georgia        
Hawaii        
Idaho        
Illinois
X2
   
410 Ill. Comp. Stat. Ann. 513/25
Indiana        
Iowa
X
X
X
Iowa Code Ann. §729.6
Kansas
X
X
X
Kan. Stat. Ann. §44-1009
Kentucky        
Louisiana        
Maine
X
X
 
Me. Rev. Stat. Ann. tit.5, §19302
Maryland        
Massachusetts
X
X
X
Mass. Gen. Laws Ann. ch.151B, §4
Michigan
X
X
 
Mich. Comp. Laws Ann. §37.1202
Minnesota        
Mississippi        
Missouri
X
   
Mo. Ann. Stat. §375.1306
Montana        
Nebraska        
Nevada
X
X
X
Nev. Rev. Stat. Ann. 613.345
New Hampshire
X
X
X
N.H. Rev. Stat. Ann. §141-H:3
New Jersey
X
X
 
N.J. Stat. Ann. §10:5-12
New Mexico        
New York
X
X
X
N.Y. Civ. Rights Law §48-a; N.Y. Exec. Law §296
North Carolina
X
   
N.C. Gen. Stat. §95-28.1A
North Dakota        
Ohio        
Oklahoma
X
X
X
Okla. Stat. Ann. tit.36, §3614.2
Oregon
X
X
X
Or. Rev. Stat. §659.036
Pennsylvania        
Rhode Island
X
X
X
R.I. Gen. Laws §28-6.7-1
South Carolina        
South Dakota        
Tennessee        
Texas
X
X
 
Tex. Lab. Code Ann. §21.402
Utah        
Vermont
X
X
 
Vt. Stat. Ann. tit.18, §9333
Virginia        
Washington        
West Virginia        
Wisconsin
X
X
X
Wis. Stat. Ann. §§111.372, 942.07
Wyoming        
1 Some states add "unless job related" or similar language.

2 §25(a): "An employer shall treat genetic testing information in such a manner that is consistent with the requirements of federal law, including but not limited to the Americans with Disabilities Act."


 

As of August 2001, twenty-two states have statutes that prohibit genetic discrimination in employment. For example, in Arizona:

It is an unlawful employment practice for an employer to fail or refuse to hire, to discharge, or to otherwise discriminate against any individual based on the results of a genetic test received by the employer. Ariz. Rev. Stat. Ann. §41-1463(B)(4) Seventeen of these states prohibit requiring genetic testing in employment. In Michigan: Except as otherwise required by federal law, an employer shall not require an individual to submit to a genetic test or to provide genetic information as a condition of employment or promotion. Mich. Comp. Laws Ann. §37.1202(1)(h) Twelve of these states go further than prohibiting requiring genetic testing in employment. These states prohibit even requesting genetic testing or information. In Rhode Island: No employer, employment agency, or licensing agency shall directly or indirectly request, require or administer a genetic test to any person as a condition of employment or licensure.

R.I. Gen. Laws §28-6.7-1(a)(1)

08/30/01