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Although no specific
federal genetic nondiscrimination legislation has been enacted,
some believe that parts of existing nondiscrimination laws could
be interpreted to include genetic discrimination. Here is a brief
overview of these laws and how they apply to genetics.
Americans
with Disabilities Act of 1990 (ADA)
The most likely current source of protection against genetic discrimination
in the workplace is provided by laws prohibiting discrimination
based on disability. Title I of the Americans with Disabilities
Act (ADA), enforced by the Equal Employment Opportunity Commission
(EEOC), and similar disability-based antidiscrimination laws such
as the Rehabilitation Act of 1973 do not explicitly address genetic
information, but they provide some protections against disability-related
genetic discrimination in the workplace.
- Prohibits
discrimination against a person who is regarded as having a
disability.
- Protects
individuals with symptomatic genetic disabilities the same as
individuals with other disabilities.
- Does
not protect against discrimination based on unexpressed genetic
conditions.
- Does not
protect potential workers from requirements or requests to provide
genetic information to their employers after a conditional offer
of employment has been extended but before they begin work.
(Note: this is a heightened concern because genetic samples
can be stored.)
- Does not
protect workers from requirements to provide medical information
that is job related and consistent with business necessity.
In March
1995, the EEOC issued an interpretation of the ADA. The guidance,
however, is limited in scope and legal effect. It is policy guidance
that does not have the same legal binding effect on a court as
a statute or regulation and has not been tested in court. According
to the interpretation,
- Entities
that discriminate on the basis of genetic predisposition are
regarding the individuals as having impairments, and such individuals
are covered by the ADA.
- Unaffected
carriers of recessive and X-linked disorders, individuals with
late-onset genetic disorders who may be identified through genetic
testing or family history as being at high risk of developing
the disease are not covered by the ADA
Health
Insurance Portability and Accountability Act of 1996 (HIPAA)
The Health Insurance Portability and Accountability Act (HIPAA)
applies to employer-based and commercially issued group health
insurance only. HIPAA is the only federal law that directly addresses
the issue of genetic discrimination. There is no similar law applying
to private individuals seeking health insurance in the individual
market. HIPAA
- Prohibits
group health plans from using any health status-related factor,
including genetic information, as a basis for denying or limiting
eligibility for coverage or for charging an individual more
for coverage.
- Limits
exclusions for preexisting conditions in group health plans
to 12 months and prohibits such exclusions if the individual
has been covered previously for that condition for 12 months
or more.
- States
explicitly that genetic information in the absence of a current
diagnosis of illness shall not be considered a preexisting condition.
- Doesn't
prohibit employers from refusing to offer health coverage as
part of their benefits packages.
Title
VII of the Civil Rights Act of 1964
An argument could be made that genetic discrimination based on
racially or ethnically linked genetic disorders constitutes unlawful
race or ethnicity discrimination.
- Protection
is available only where an employer engages in discrimination
based on a genetic trait that is substantially related to a
particular race or ethnic group.
- A strong
relationship between race or national origin has been established
for only a few diseases
Leslie
Gornstein
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