Appeals court ruling: Gene testing illegal
Workplace tests can violate employee privacy
It may not matter how altruistic your motives are: Test your employees for genetic disorders and you’re likely to find yourself on the wrong side of the law.
That’s the message conveyed by a recent ruling in the 9th Circuit Court of Appeals in California. In the case, Norman-Bloodsaw vs. Lawrence Berkeley Lab., 135 F. 3d 1290 (9th Cir., 1998), the court found that genetic tests conducted by a federal laboratory on its employees without their explicit permission may have violated the workers’ constitutional protections against invasion of privacy.
The case was filed by seven employees of the Department of Energy’s Lawrence Berkeley National Laboratory, a research lab managed by the University of California. The employees found out, years after they were hired, that their blood and urine obtained during their pre-employment physical exams had been used to test them for syphilis, and in the case of black applicants, to conduct genetic tests for sickle cell disease. The women were also given pregnancy tests without their knowledge.
In the original court case in 1996, a U.S. district court rejected their claim that their civil rights had been violated. However, the appeals court ruled that such tests are justifiable only when permission has been expressly granted or, in the case of an employment physical, when the test results may be directly relevant to the person’s ability to do his job.
Fraught with danger
Genetic testing can be a minefield of potential legal liability for employers, says Lori Andrews, JD, who teaches genetics and law at Chicago-Kent College of Law, and serves as director of the Institute for Science, Law and Technology.
"The court put a higher standard on informing employees before you do a series of tests on blood drawn for another purpose," she explains. "You need to be more specific about what you’re doing with an employee’s blood that was drawn in the course of a physical exam. Genetic testing in particular is viewed as being very volatile."
Why are employees particularly adamant about genetic testing?
"If you test for genes like BRCA1 [breast cancer] without the employee’s consent, it can lead to insurance discrimination," says Andrews. "Or, it can have financial ramifications. Employees have actually been denied insurance coverage based on genetic conditions found in a sibling or a parent."
In the Berkeley case, the employer also left itself open to Title 7 claims of discrimination, since only black applicants were tested for certain disorders.
"Of course, testing women for pregnancy without their consent has absolutely no validity," Andrews asserts.
Testing bound to increase
Despite the clear pitfalls, Andrews expects that "a host of new genetic tests" will enter the workplace in years to come.
"Under OSHA regulations, for example, the employer is supposed to make the workplace safer. Since certain genetic mutations can make the workplace less safe if employees are exposed to that environment, employers can suggest genetic testing is necessary," Andrews notes. "Even such justifiable’ testing can lead to adverse psychological or social impact on the individual employee."
What about using genetic testing to help identify and target employees with a high-risk level for specific chronic illnesses, as part of an overall disease prevention and management strategy?
"There’s still a real tension here because that same information [intended for good] might be used to make adverse job decisions, like in a case where an employee is found to have a genetic predisposition for heart disease," says Andrews.
Because of these potential pitfalls, more experts are calling for the testing to be done outside the workplace, which would limit the potential for abuse.
Andrews advises wellness professionals and employees to be skeptical when the subject of genetic testing is raised.
"For a certain, limited number of genetic disorders where it is clear that workplace exposure is a large potential risk — there might be a role," she admits. "But not in terms of diseases — or population screenings, where you have no reason to believe there’s a risk, and you’re just roaming through employees’ genes."
Such testing could clearly open up the company to legal liability. The bottom line, says Andrews, is that "there should be a very narrow focus where genetic testing is concerned."
[For more information, contact: Lori Andrews, The Institute for Science, Law, and Technology, 565 W. Adams St., Chicago, IL 60661. Telephone: (312) 906-5359.]
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