40 Pages Posted: 1 Jul 2014 Last revised: 14 Jun 2016
Date Written: August 14, 2015
Well-settled legal doctrines prohibit employers from discriminating against job applicants on the basis of physical characteristics such as race, sex, age or disability. However, the full implications of genetic testing were inconceivable during the promulgation of those doctrines. Technological advancements and social trends in the interpretation of genetic testing create the need to further delineate the legal boundaries of the employer’s power to make hiring decisions on the basis of genetic information. Although the Genetic Information Nondiscrimination Act (GINA) took effect in 2009, there continues to be a steady increase in the reported instances of genetic discrimination. This Article argues that GINA should be strengthened with the addition of a disparate impact cause of action. Currently, Section 208 of GINA explicitly prohibits disparate impact as a cause of action but that same section mandates the establishment of the Genetic Non-Discrimination Study Commission which is charged to start examining the developing science of genetics in 2014 and which will recommend to Congress whether to provide a disparate impact cause of action for GINA. This Article finds support for the addition of a disparate impact clause to GINA for the following reasons: 1) Ease of access to genetic testing and the insecurity of genetic information has increased the likelihood of genetic discrimination in employment; 2) The addition of a disparate impact clause is in line with the precedent set by prior employment discrimination laws; 3) The EEOC has declared that proof of deliberate acquisition of genetic discrimination is not necessary to establish a violation of GINA, likewise, proof of intent to discriminate should not be required to demonstrate that there has been genetic discrimination; 4) And finally, real world instances of genetic testing have shown that facially neutral testing may result in racial disparities.
Keywords: Inequality, Employment Discrimination, Health Law, Genetic Testing, GINA, Genetic Information Non-Discrimination Act, Disparate Impact, Protected Class, Economic Underclass, Gattaca, Big Data, Civil Rights
JEL Classification: A13, D78
Suggested Citation: Suggested Citation
Ajunwa, Ifeoma, Genetic Data and Civil Rights (August 14, 2015). Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Vol. 51, 2016. Available at SSRN: https://ssrn.com/abstract=2460897 or http://dx.doi.org/10.2139/ssrn.2460897