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Privacy Law Blog

Rise of the Genome

Posted in Medical Privacy, Workplace Privacy

We pack tons of personal and sensitive information in our DNA.  While the human genome has been mapped for a decade, legal issues of genetic privacy are just beginning to rise.  Earlier this month, the U.S. Supreme Court decided what Justice Alito described as “perhaps the most important criminal procedure case that this court has heard in decades.”  The case addressed whether police could constitutionally take a DNA sample from a person arrested for a serious crime, and in a 5-4 decision, the Court ruled that DNA collection serves the legitimate government interest in identifying arrestees.  In the majority opinion, however, Justice Kennedy noted that, “If in the future police analyze samples to determine, for instance, an arrestee’s predisposition for a particular disease or other hereditary factors not relevant to identity, that case would present additional privacy concerns not present here.” 

This use of genetic information – to determine a person’s medical predispositions – was at the heart of two recent cases brought by the Equal Employment Opportunity Commission (EEOC).  The cases alleged violations of the Genetic Information Nondiscrimination Act (GINA), which applies to any employer with at least 15 employees, and makes it illegal to discriminate against employees or job applicants based on genetic information.  Under GINA, “Genetic Information” includes family medical history, as a person’s family medical history can illuminate many genetic proclivities.   

The first of the two cases brought by the EEOC was the first time the EEOC had alleged genetic discrimination.  The suit accused Fabricut, Inc., an Oklahoma-based company, of refusing to hire a job applicant because it thought she had carpal tunnel syndrome (CTS).  The EEOC alleged that Fabricut’s contract medical examiner inquired into the medical history of the applicant’s family.  Fabricut then told the applicant that she needed to be evaluated for CTS by her personal physician.  She complied, her physician concluded she did not have CTS, but Fabricut nevertheless rescinded its job offer after its contract medical examiner concluded Ms. Jones did have CTS.  This, the EEOC alleged, violated GINA and the Americans with Disabilities Act (ADA), which prohibits discrimination against qualified individuals with disabilities or individuals who are incorrectly regarded as having disabilities.  Fabricut settled the suit.

Soon after the EEOC settled with Fabricut, the EEOC filed a class action suit against a different employer on similar grounds.  The class action alleges that Founders Pavilion, Inc., a New York-based company violated GINA, the ADA, and Title VII of the Civil Rights Act by asking applicants for genetic information, including family medical history, during the hiring process. 

While the Supreme Court has opened the doors to collecting DNA samples from certain arrestees, it is clear that the EEOC is focusing on genetic privacy.  The EEOC’s Strategic Enforcement Plan includes “addressing emerging and developing issues,” and genetic privacy is certainly one of those issues.