By Mark A. Rothstein

The right of an employee to be free from nonconsensual genetic testing during a preplacement medical examination was upheld for the first time in Norman-Bloodsaw v. Lawrence Berkeley Laboratory, decided by the Ninth Circuit Court of Appeals on February 3, 1998.

The case was brought by seven current or former administrative and clerical employees of the Lawrence Berkeley Laboratory (LBL), one of the national laboratories operated by the University of California under contract with the United States Department of Energy (DOE). The plaintiffs contended that during their preplacement medical examinations they were required to submit to blood and urine testing. Then, without their knowledge or consent the samples were tested for sickle cell trait, syphilis, and pregnancy. The plaintiffs claimed that the testing constituted an invasion of privacy under the United States and California Constitutions, and that it also violated Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA). The district court dismissed the claims on a variety of grounds, notably that the individuals' general consent to the medical examinations covered the tests performed, that the non-job-related medical questionnaire the individuals were required to complete put them on notice of the broad range of medical testing that was performed, and that any privacy intrusion was minimal.

The Ninth Circuit reversed the district court and remanded for a trial on the merits of the constitutional and Title VII claims, affirming the lower court only in its dismissal of the ADA action. In reinstating the constitutional claims, the court emphasized the significance of the privacy claims alleged. "[I]t goes without saying that the most basic violation possible involves the performance of unauthorized tests -- that is, the non-consensual retrieval of previously unrevealed medical information that may be unknown even to plaintiffs.... One can think of few subject areas more likely to implicate privacy interests than that of one's health or genetic make-up."

The Title VII action was based on the theory that by singling out black employees for sickle cell trait testing and female employees for pregnancy testing the employer discriminated in the terms and conditions of employment on the basis of race and sex. The appeals court agreed. It affirmed the lower court's dismissal of the ADA claim, however, because under the ADA post-offer, preplacement medical examinations need not be job-related and the ADA does not require informed consent for medical examinations.

The decision is significant for three reasons. First, it is the initial appellate decision to address workplace genetic testing, an issue of increasing concern. Fourteen states have enacted laws to prohibit genetic discrimination in employment and several bills to prohibit genetic discrimination in employment are pending in Congress. Second, although the testing at issue was discontinued by LBL in 1995, it is not clear whether it is still being performed at other sites by DOE contractors. Third, ironically, the DOE is one of the two federal agencies (the National Institutes of Health being the other) conducting research on the Human Genome Project, the large scientific endeavor to analyze the structure and sequence of all human genetic material.

The DOE should be especially aware of the sensitive nature of genetic information and especially vigilant in preventing its contractors from performing unnecessary and illegal genetic testing.

02/13/98