Genetic testing in the workplace.

Equal Employment Opportunity Commission v. Burlington Northern Santa Fe Railway was settled on May 6, 2002, with 36 employees receiving $2.2 million. In this case, Burlington conducted undisclosed genetic testing in conjunction with medical exams in response to employee claims of increased carpal tunnel systems.

Burlington alleged that it undertook the pilot testing in an attempt to comply with workplace OSHA regulations. Burlington chose to settle without admitting wrongdoing, rather than face prolonged litigation. (1)

Employers are facing increasingly tough decisions in regard to genetic testing in the workplace.

On one hand, failure to take advantage of available technology to ascertain employee's predisposition to disease may result in employer violations of Occupational Safety and Health Administration regulations, as well as exposure to negligence-based lawsuits for failure to provide a safe workplace.

On the other hand, testing of employees could result in liability for violation of a variety of federal and state statutes, such as the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act.

Not surprisingly, as health care costs continue to increase and the costs of genetic testing decrease, employers may view genetic testing as a cost-saving technique by trying to weed out employees with genetic markers for disease.

Genetic testing is "the use of specific assays to determine the genetic status of individuals already suspected to be at high risk for a particular inherited condition." (2)

Advances in genetic research since the mapping of the human genome have resulted in the ability to determine individual susceptibility to an increasing number of illnesses. Examples include sickle cell disease, degenerative neurological diseases and certain forms of cancer.

Employers currently may require pre-employment physicals to determine if an employee is able to physically perform their job. Faced with increasing employee and retiree health care costs, employers may be tempted to screen for genetic susceptibility and make employment decisions based on such data.

It follows that when faced with two applicants, one with a high likelihood of developing a costly illness, and another with a low likelihood of developing the illness, the latter candidate may be given preference.

As early as 1983, the U.S. President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research predicted that before the end of the century genetic screening and counseling would become major components of both public health and individual medical care. (3)

The current cost to sequence an entire patient genome costs about $2 million. However, the National Institutes of Health predicts that it will decrease to S1,000 within 10 years. Private firms are banking on it sooner.

Federal law

Federal law is silent on the issue of employee genetic testing. Congress has attempted to enact legislation protecting employees from genetic testing abuses on several occasions without success.

The Burlington Case brought the issue of workplace genetic testing to the halls of Congress. Senator Tom Daschle, (D-SD) introduced the "Genetic Nondiscrimination in Health Insurance and Employment Act" in 2002. (4)

The bill would have put a limit on the ability of insurers and employers to use genetic information, but was opposed by Republican leadership, backed by employers and the insurance industry.

Legal theories of liability

While no federal law controls, employers may be liable for genetic testing under a variety of theories. These include the ADA, the Civil Rights Act, the Fourth Amendment to the United States Constitution, and various state laws.

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The ADA prohibits employers with 15 or more employees from discriminating against applicants or employees on the basis of a disability. (5) While the ADA is silent on genetic characteristics, some have argued that the statute protects individuals with "genetic markers for a disease."

The Equal Employment Opportunity Commission is responsible for enforcing the ADA, and, in 1995, interpreted "disability" in the ADA to include genetic predisposition to disease.

Title VII of the Civil Rights Act prevents employers from discrimination based on the basis of race, sex, national origin, nationality, color or religion. (6) The law can be violated if an action of the employer results in a "disparate treatment" or "disparate impact" on the employee.

Disparate treatment occurs when an employer treats a member of a protected class differently from others. While some genetic markers are associated with protected groups, such as sickle cell in African Americans, employers can argue that they are discriminating based on genetic markers, and not on the groups that carry them.

However, liability may also ensue if the discrimination has a disparate impact on a protected class. Here, a plaintiff must show that the genetic testing, while not targeted at a protected class, still has the impact of discriminating against the protected class.

The Fourth Amendment to the United States Constitution provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." (7)

The Supreme Court has interpreted the Fourth Amendment to include a right of privacy in medical information. (8) In addition, lower courts have subsequently ruled that individuals have constitutionally protected privacy interests in the results of bodily fluid analysis. (9,10)

Federal employees, however, do have protections. President Bill Clinton issued an executive order banning genetic discrimination in the executive branch of the federal workforce in 2000. (11)

State law

In the 1970s, states began to protect job applicants with sickle cell trait from discriminatory hiring practices. States continued to follow developments in genetic science and, in 1991, Wisconsin became the first state to ban genetic testing and discrimination in the workplace.

Thirty-four states ban the use of genetic information in the workplace, with the scope varyingly widely. (12) All laws prohibit employment discrimination based on the results of genetic tests.

In addition, some states extend the protections to inherited characteristics, family member results, family history, and information about the receipt of genetic services.

Most states also restrict employer access to genetic information, as well as performing or administering genetic tests. Some states also make exceptions to statutory requirements if genetic information identifies individuals who may be a safety risk in the workplace. (12)

Liability for failure to test

In addition to liability for testing for genetic predisposition, employers may find themselves liable for not testing under common law theories of liability and the Occupational Safety and Health Act of 1970 (OSHA).

OSHA places a duty on employers to "furnish to each of his employees a place of employment which [is] free from recognized hazards that are causing or likely to cause death or serious physical harm." (13)

Since the aim of the legislation is to prevent workplace harm, the taking of genetic information from employees that may result in a safer workplace may be viewed as a requisite to providing a safe working environment.

Also, common law theories provide further guidance to employers in the area of genetic testing. Employer negligence is a key area. For a plaintiff to prevail on a negligence theory, they must show that the employer owed a duty to discover a genetic predisposition during an employment-related exam.

Some state courts have imposed such a duty, and found the employer liable for not uncovering a genetic predisposition to a disease. On the flip side, state courts have imposed liability on employers for genetic testing without an employee's consent on theories of invasion of privacy and battery.

The future of genetic testing

As the price of genome technology drops, the use of genetic testing in our society will increase. Employers will be no exception. Health care executives need to keep abreast of both the scientific advancement, as well as the law in this area in order to shape the debate in the employment and health care communities.

Christopher Spevak, MD, MPH, MBA, JD, is a physician attorney practicing in Washington, D.C. He is the president of the Medical Society of the District of Columbia and a clinical associate professor at Georgetown University Medical Center. He can be reached at 202-321-0598 or [e-mail]

Disclaimer-This article contains the advice, opinions, statements and views of the author and does not necessarily represent the advice, opinions, statements or views of Georgetown University Medical Center, or its physicians. The content of this article is provided solely for informational purposes; it is not intended as and does not constitute legal advice. The information contained herein should not be relied upon or used as a substitute for consultation with legal, accounting, tax, career and/or other professional advisors.

References

1. EEOC v. Burlington Northern Santa Fe Railway Co., No. 02-C-0456 (E.D. Wis. 2002).

2. U.S. Congress. Office of Technology Assessment (OTA). Genetic Monitoring and Screening in the Workplace. Washington: U.S. Government Printing Office, 1990. (OTA-BA-455, S/N 052-003-01217-1.) 262 p.

3. U.S. President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Screening and Counseling for Genetic Conditions: A Report on the Ethical, Social, and Legal Implications of Genetic Screening, Counseling, and Education Programs. Washington: Government Printing Office, 1983.

4. 2001 S. 318; 107 S. 318

5. Title I of ADA Americans with Disabilities Act, 42 U.S.C. [section]12112 (1995).

6. Title VII of the Civil Rights Act 42 U.S.C. [section]2000(e) et seq.

7. U.S. Const. amend. IV

8. Whalen v. Roe, 429 U.S. 479 (1965)

9. Doe v. Attorney General of the United States, 15 F.3d 264, 267 (9th Cir. 1994).

10. Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1260, 1270 (N.D. Cal. 1998).

11. Executive Order 13145 "To Prohibit Discrimination in Federal Employment Based on Genetic Information." February 8, 2000.

12. National Conference of State Legislatures. State Genetics Employment Laws. http://www.ncsl.org/programs/health/genetics/ndiscrim.htm Accessed November 11, 2007.

13. Occupational Safety and Health (OSH) Act of 1970, Pub. L. 91-596, 84 Stat 1590.

By Christopher Spevak MD, MPH, MBA, JD

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