‘Sorry, We Don’t Like the Looks of Your DNA’ House, Senate Address Genetic Bias In Hiring


Feb. 15, 2007

Both the House and Senate have recently addressed an issue that hasn’t popped up much on business radar—genetic discrimination. Despite congressional activity, genetic discrimination suits rarely turn up in courtrooms.

The minimum wage bill and a major measure on union formation have taken the workplace spotlight during the first weeks of Congress. But recently both the House and Senate have addressed an issue that hasn’t popped up much on business radar—genetic discrimination.

On January 30, the House held a hearing on a bill that would ban companies from using genetic information to make employment decisions. It also would prohibit insurers from denying coverage or raising premiums based on a genetic predisposition.

The Senate Health, Education, Labor and Pensions Committee approved a similar measure on January 31. In previous Congresses, the full Senate passed genetic nondiscrimination bills unanimously. House Republicans resisted doing the same.

The calculus may change now that Democrats control the House, where the current bill has received a hearing and garnered more than 180 bipartisan co-sponsors.

Despite the flurry of congressional activity, genetic discrimination suits have rarely turned up in courtrooms. No cases have been filed in the 32 states that have such laws.

In the sole federal action, Burlington Northern Santa Fe Railroad reached a $2.2 million settlement with the Equal Employment Opportunity Commission in 2002 in a case involving employees who were subject to genetic tests for carpal tunnel syndrome.

The legal quiescence stems from the fact that companies haven’t adopted genetic profiling in the employment process.

“This is an instance where the law is a bit out in front of the practice in corporate America,” says Gerald L. Maatman Jr., an attorney with Seyfarth Shaw in Chicago.

Legislators are trying to assuage employee fears about genetic discrimination. They cite anecdotal evidence of workers who have been fired after undergoing tests that purportedly revealed a predisposition toward a disease, or workers who have refused to take tests because they don’t trust what their employers will do with the results.

Fear of workplace abuse could hamper legitimate genetic research, Rep. Louise Slaughter, D-New York and co-author of the House bill, said at the House hearing.

“If individuals do not participate in clinical trials, then we will never be able to reap the real benefits of genetic technology,” she said.

Rep. Judy Biggert, R-Illinois and the measure’s other co-author, stressed that the bill has been made less menacing to business because it requires plaintiffs to exhaust administrative procedures before turning to the courts. It also narrows the definition of genetic information and caps punitive and compen- satory damages at $300,000 for companies with more than 500 employees.

“An employer would have to go out of his or her way to discriminate,” she says.

IBM already bans genetic testing. “In our view, not protecting IBMers’ genetic privacy or not including genetics in our equal opportunity policy would have been inconsistent with our own DNA as an organization,” Harriet Pearson, IBM vice president for corporate affairs, said at the House hearing.

But business interests worry that the legislation is too broad—and ultimately unnecessary, given that it would overlay existing antidiscrimination laws.

“The bill is a remedy in search of a problem,” Burton Fishman, an attorney with Fortney Scott in Washington, said at the hearing.

Mark Scheoff Jr.

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