Predictive Health Information and Employment Discrimination under the ADA and GINA

Abstract

New technologies, including genomics and precision medicine, are expanding the range of predictive health information. Employers interested in assessing the future health risks of prospective or current employees can gain access to information in an individual’s clinical record or can use algorithms to make their own predictions. When individuals have sub-clinical markers of future serious impairments, neither of the two main laws prohibiting discrimination in employment based on health status, the Americans with Disabilities Act (ADA) nor the Genetic Information Nondiscrimination Act (GINA) applies. The ADA does not apply to physical or mental impairments that are not currently a substantial limitation of a major life activity. GINA does not apply to conditions that have “manifested,” including physical changes detectable by a trained professional. Both statutes should be amended to prohibit forms of discrimination that were not contemplated when the legislation was enacted.

Keywords: Americans With Disabilities Act, Ada, Employment Discrimination, Genetic Information Nondiscrimination Act, Gina, Genomics, Medical Screening, Precision Medicine, Predictive Health Information