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  She complied, her physician concluded she did not have CTS, but Fabricut nevertheless rescinded its job offer after its contract medical examiner concluded Ms.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.

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Photo of David Munkittrick David Munkittrick

David Munkittrick is a litigator and trial attorney. His practice focuses on complex and large-scale antitrust, copyright and entertainment matters in all forms of dispute resolution and litigation, from complaint through appeal.

David has been involved in some of the most significant antitrust…

David Munkittrick is a litigator and trial attorney. His practice focuses on complex and large-scale antitrust, copyright and entertainment matters in all forms of dispute resolution and litigation, from complaint through appeal.

David has been involved in some of the most significant antitrust matters over the past few years, obtaining favorable results for Fortune 500 companies and other clients in bench and jury trials involving price discrimination and group boycott claims. His practice includes the full range of antitrust matters and disputes: from class actions to competitor suits and merger review. David advises antitrust clients in a range of industries, including entertainment, automotive, pharmaceutical, healthcare, agriculture, hospitality, financial services, and sports.

David also advises music, publishing, medical device, sports, and technology clients in navigating complex copyright issues and compliance. He has represented some of the most recognized names in entertainment, including Sony Music Entertainment, Lady Gaga, U2, Madonna, Daft Punk, RCA Records, BMG Music Publishing, Live Nation, the National Academy of Recording Arts and Sciences, Universal Music Group and Warner/Chappell.

David maintains an active pro bono practice, supporting clients in the arts and in immigration proceedings. He has been repeatedly recognized as Empire State Counsel by the New York State Bar Association for his pro bono service, and is a recipient of Proskauer’s Golden Gavel Award for excellence in pro bono work.

When not practicing law, David spends time practicing piano. He recently made his Carnegie Hall debut at Weill Recital Hall with a piano trio and accompanying a Schubert lieder.

David frequently speaks on antitrust and copyright issues, and has authored or co-authored numerous articles and treatise chapters, including:

  • Causation and Remoteness, the U.S. Perspective, in GCR Private Litigation Guide.
  • Data Breach Litigation Involving Consumer Class Actions, in Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age.
  • Location Privacy: Technology and the Law, in Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age.
  • FTC Enforcement of Privacy, in Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age.
  • The Role of Experts in Music Copyright Cases, Intellectual Property Magazine.
  • Nonprofit Education: A Historical Basis for Tax Exemption in the Arts, 21 NYSBA Ent., Arts, & Sports L.J. 67
  • A Founding Father of Modern Music Education: The Thought and Philosophy of Karl W. Gehrkens, Journal of Historical Research in Music Education
  • Jackson Family Wines, Inc. v. Diageo North America, Inc. Represented Diageo in trademark infringement litigation