Workers are entitled to genetic privacy at work, Ninth Circuit holds.

Venturing into a cutting-edge area of law, the Ninth Circuit Court of Appeals has ruled that an employer may not test employees for "highly private and sensitive" medical and genetic information without the workers' consent. Such "illicit" testing, if proven at trial, would be an unconstitutional invasion of privacy and, in some cases, would amount to job discrimination in violation of Title VII, the court held.

The decision is the first by a federal appellate court to recognize a constitutional right to genetic privacy in the workplace. (Norman-Bloodsaw v. Lawrence Berkeley Laboratory, No. 96-16526, 1998 WL 39209 (9th Cir. Feb. 3, 1998).)

"One can think of few subject areas more personal and more likely to implicate privacy interests than that of one's health or genetic makeup," Judge Stephen Reinhardt wrote for the unanimous three-judge panel.

The court reinstated a lawsuit by seven current and former employees of the Lawrence Berkeley Laboratory, a research facility run by the University of California under a contract from the U.S. Department of Energy. The plaintiffs challenged the lab's practice of screening employees for syphilis, pregnancy, and the genetic trait for sickle-cell anemia by testing blood and urine samples workers gave during preemployment physical exams.

The workers claimed they were not informed of the tests and thought the samples would be used for more routine purposes, such as cholesterol screening. All three types of testing were discontinued by 1995, although optional pregnancy testing is available at an employee's request.

"[I]t goes without saying that the most basic violation possible involves the performance of unauthorized tests--that is, the nonconsensual retrieval of previously unrevealed medical information that may be unknown even to plaintiffs," Reinhardt wrote. He added that the tests might also be viewed as illegal searches under the Fourth Amendment.

The court rejected the defense argument that the workers had effectively consented to the tests by agreeing to undergo the exam, filling out a medical questionnaire, and giving the blood and urine samples. The court said that none of these is the same as authorizing the three specific tests at issue. It said the question whether the workers had been explicitly notified was in dispute and should be resolved by a jury.

The judges expanded prior medical privacy rulings, which generally had barred the unauthorized release of medical information to third parties. The court said the facts revealed by the lab's tests "are highly sensitive, even relative to other medical information," and could not legally be collected without consent.

Vicki Laden, an Oakland attorney who represents the plaintiffs, said she was pleased that the court recognized that "certain types of medical information are more private [than others] and involve a heightened privacy interest."

The court also allowed the plaintiffs' job discrimination claims to proceed, saying the allegations "fall neatly into a Title VII framework." The workers allege that the lab discriminated against women, who were tested for pregnancy, and African Americans, who were tested for the sickle-cell trait.

"[T]he employment of women and blacks at Lawrence was conditioned in part on allegedly unconstitutional invasions of privacy to which white and/or male employees were not subjected," Reinhardt wrote.

He noted that different testing requirements based on race, sex, and pregnancy, even if not unconstitutional, would still be a valid basis for a Title VII discrimination claim.

Laden said the court's Title VII analysis was precedent setting because it rejected the defense claim that the plaintiffs had not been harmed as a result of the unauthorized testing.

The court held that even though the lab workers did not suffer traditional work-related harms like the denial of pay raises or promotions, the lab's "unauthorized obtaining of sensitive medical information on the basis of race or sex would in itself constitute an `adverse effect' or injury under Title VII."

"I would argue that selectively abridging constitutional rights changes the [workplace] environment and makes employees feel stigmatized," Laden said. "The court recognized that stigmatic harm is a significant harm."

The workers are seeking an injunction in the district court that would prohibit the lab from resuming illegal testing in the future and would require the lab to notify employees who were tested, destroy test results, and explain how the results were used.

A lawyer for Lawrence said the lab had decided not to petition the full Ninth Circuit for rehearing but was considering whether it would take the case to the U.S. Supreme Court.