Race, Sex and Genes at Work: Uncovering the Lessons of Norman-Bloodsaw

Abstract

The Genetic Information Nondiscrimination Act of 2008 (“GINA”) is the first federal, uniform protection against the use of genetic information in both the workplace and health insurance. Signed into law on May 21, 2008, GINA prohibits an employer or health insurer from acquiring or using an individual’s genetic information, with some exceptions. One of the goals of GINA is to eradicate actual, or perceived, discrimination based on genetic information in the workplace and in health insurance. Although the threat of genetic discrimination is often discussed in universal terms - as something that could happen to any of us - the use of genetic information implicates other types of discrimination as well. Congress recognized this problem in GINA’s legislative findings. Literature discussing issues of race, gender, and genetic information in connection with medical research and health insurance continues to grow. Less attention has been given to claims of genetic discrimination in the workplace. Now is the time to address that gap in the literature. In its legislative findings, Congress identified the facts of the 1998 case Norman-Bloodsaw v. Lawrence Berkeley Laboratory as a key example of genetic discrimination in the workplace.

Norman-Bloodsaw was the first class action suit raising privacy and discrimination claims related to medical and genetic testing in the workplace. In this piece, I focus on the story behind the Norman-Bloodsaw case to contextualize some thoughts about the use of genetic information in the workplace after GINA and draw out the troubling connections between genetic information and classifications based on race and sex. Part I provides an overview of GINA, including the significant exceptions to the prohibition against employer acquisition of genetic information. In Part II, I uncover the story behind Norman-Bloodsaw, drawing upon the published opinions and briefs, as well as contemporary reports in the national and local media, and a variety of professional publications. In Part III, I highlight two important points that arise from the rich context of Norman-Bloodsaw that can guide the interpretation of GINA in the future: genetic testing of workers occurs and is likely to continue even after GINA, and the gathering and use of genetic information in the workplace is not neutral and often exacerbates long-standing patterns of discrimination based on race and sex.

Keywords: Race, Gender, Disability, Discrimination, Civil Rights, Privacy, Genetic Testing, Genetic Information, Workplace Testing, Employment, Employment Discrimination, Title VII, Americans with Disabilities Act, ADA, Genetic Information Nondiscrimination Act, GINA, Health Insurance, Norman-Bloodsaw

JEL Classification: I00, I1, I18, J00, J7, J70, J71, J78