Predispositions in Out Genes

Science fiction sometimes resembles reality. Take, for example, the fictional film Gattaca: It depicts a world where DNA rules and inhabitants are denied the good jobs, regardless of their abilities, unless they have a top-notch genetic makeup.

The reality: Genetic testing is available today and regulators and lawmakers are

Testing Violates the Law     In a sign that the EEOC is intolerant of some uses of genetic data, the agency filed and settled a lawsuit against The Burlington Northern and Santa Fe Railroad Company alleging that its testing violated federal law.     DNA testing was required of railroad employees who filed work-related claims of carpal tunnel syndrome, a wrist condition caused by repetitive hand movement. The tests were conducted to predict a person’s predisposition to some forms of the syndrome.     The EEOC charged that requiring blood samples violated the Americans with Disabilities Act. Burlington Northern said it would stop the testing and settled the case in 2002 for about approximately $2.2 million, plus promised remedial measures.

making sure that it isn't being used to discriminate against employees.

Nearly 30 states have banned certain uses of data culled from genetic tests. And the Equal Employment Opportunity Commission (EEOC) has made it clear that some types of genetic employment testing violate the Americans With Disabilities Act. The agency sued one company over the issue (see right-hand box).

So far, genetic testing is relatively rare in the workplace. Some employers — about 10 percent, according to a survey done by the American Management Association — routinely test employees for genetic predispositions to diseases.

Nevertheless, employees worry that tests will be used by companies to lower their insurance and sick leave costs by weeding out individuals who have traits linked to inherited medical conditions. There is also concern that some forms of health screening that require blood samples may give employers and insurers an opportunity to gather additional data about employees.

Companies may want to use genetic testing to tell whether employees or job applicants:

 Are more susceptible to workplace risks.
 Have genes that are being harmed by chemicals or toxins in the workplace.
 May become prematurely unable to work.
 Are likely to incur higher health costs for themselves or their dependents.

Those last two categories are illegal, according to the EEOC. Under an ADA provision, employees are protected when they are "regarded as” having an impairment that substantially limits one or more major life activities.

The point is that some individuals may carry a genetic marker for a disease and yet remain asymptomatic because the disease hasn’t manifested itself. They are unlikely to be impaired in a major life activity. In fact, some people who test positive for genetic mutations associated with certain conditions never develop those illnesses.

However, by taking an adverse action against an employee based on genetic information, an employer is, in effect, creating an impairment and making the employee eligible for protection under the ADA.

Federal employees are protected against genetic discrimination by an executive order signed by former President Bill Clinton, who said the policy should be an example to all employers. The order bans federal employers from:  

 Firing or not hiring a person because of a genetic test.
 Requesting, requiring, collecting or purchasing protected genetic information.
 Disclosing genetic information or keeping it in general personnel records, rather than in confidential medical files.

The EEOC then issued guidance clarifying the application of the executive order. Among the explanations offered, the federal agency stated: 

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