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Genetic discrimination occurs when people treat others (or are treated) differently because they have or are perceived to have a gene mutation(s) that causes or increases the risk of an inherited disorder. It may also refer to any and all discrimination based on the genotype of a person rather than their individual merits.
Some legal scholars have argued for a more precise and broader definition of genetic discrimination: "Genetic discrimination should be defined as when an individual is subjected to negative treatment, not as a result of the individual’s physical manifestation of disease or disability, but solely because of the individual’s genetic composition."
Genetic Discrimination is considered to have its foundations in genetic determinism and genetic essentialism, and is based on the concept of genism, i.e. distinctive human characteristics and capacities are determined by genes.
United States legal status
Genetic discrimination is illegal in the U.S. after passage of the Genetic Information Nondiscrimination Act of May 21, 2008. The legislation also bars employers from using individuals’ genetic information when making hiring, firing, job placement, or promotion decisions. It was signed into law by President George W. Bush on May 21, 2008. The law does not cover life insurance nor long-term care insurance, which has already created problems for some patients who have undergone genetic testing.
The Genetic Information Nondiscrimination Act (GINA) does not have a disparate impact theory provision although some legal experts have argued for the addition of such a provision. A Genetics Study Commission is scheduled to be called by Congress to determine whether such a provision is necessary.
Health insurance discrimination
In 2008, The New York Times reported that some individuals avoid genetic testing out of fear it will impede their ability to purchase insurance or find a job. They also reported that evidence of actual discrimination was rare.
Canada legal status
On May 4, 2017, Bill S-201, the Genetic Non-Discrimination Act, received Royal Assent and became law in Canada. Despite government opposition in the House of Commons, it survived the lower house by the support of backbench Liberals and the totality of the Conservative, NDP and Green Party MPs. The Genetic Non-Discrimination Act makes it a crime for anyone to require an individual to undergo genetic testing as a condition for the provision of goods or services, or as a condition for entering or continuing a contract. The Act also forbids anyone from refusing to enter into a goods or services agreement with another person on the grounds that that person has refused to disclose the results of an already completed genetic test. One who contravenes these prohibitions is liable to being fined (up to $1 million) and/or imprisoned (up to 5 years).
Accordingly, one effect of this legislation will be to prohibit insurance providers from demanding that a prospective client undergo a genetic test - or to disclose an existing test - as a prerequisite to the provision of insurance coverage.
Genetic testing in the workplace
Some people have genes that make them more susceptible to developing a disease as a result of an occupational exposure. For example, workers with beryllium sensitivity and chronic beryllium disease are more likel to carry the gene HLA-DPB1 than workers without these conditions. By offering optional genetic testing to workers and allowing only the workers to see their own results, employers could protect genetically susceptible individuals from certain occupational diseases. A beryllium manufacturing company initiated a pilot program to test prospective workers for the HLA-DPB1 gene at a university-based laboratory. The company paid for the testing and counseling but received results that did not identify which workers had the gene.
In 1991, the American Medical Association Council on Ethical and Judicial Affairs suggested that the following five conditions must be satisfied in order for genetic screening by an employer to be appropriate:
- The disease must develop so rapidly that monitoring would be ineffective in preventing it.
- The genetic test is highly accurate.
- The genetic variation results in an unusually elevated susceptibility to occupational illness.
- Undue expense is needed to protect susceptible workers by lowering the level of the toxic substance in the workplace.
- The worker must provide informed consent prior to being tested.
Several occupational health screening measures similar to genetic testing are already taking place. For example, in 1978, DuPont reported testing African American applicants for sickle cell trait and restricted these workers from exposure to nitro and amino compounds. However, research indicates that workers or applicants would not take advantage of genetic testing due to fear of discrimination. A 1995 poll of the general public found that over 85% are concerned about access to use of genetic information by insurers and employers. Likewise, in the case of the beryllium manufacturer described above, so few workers participated in the genetic testing that the company decided instead to pursue an “enhanced preventive model of workplace controls”.
Genoism is a neologism coined by Andrew Niccol, director and writer of the 1997 film Gattaca, used to describe unethical and illegal genetic discrimination. Predictions of physical and mental performance are computed via genetics from DNA collected from hair, fingernails, skin flakes, spit swabs, eyelashes, etc. Upon birth, a number of genetically-induced characteristics are calculated: physical and intellectual capacity, life expectancy, probable successful diseases, and likely causes of death, all determined via blood samples and genetic testing. Job interviews, health insurance purchasing, and even potential dates can be sized up according to the perceived quality of the person's DNA due to advancements in genome sequencing. This put an ironic twist to Darwin's sexual selection for good genes. According to the movie, "We now have discrimination down to a science."
My father was right. It didn't matter how much I lied on my resume. My real resume was in my cells. Why should anybody invest all that money to train me when there were a thousand other applicants with a far cleaner profile? Of course, it's illegal to discriminate, 'genoism' it's called. But no one takes the law seriously. If you refuse to disclose, they can always take a sample from a door handle or a handshake, even the saliva on your application form. If in doubt, a legal drug test can just as easily become an illegal peek at your future in the company.
- Gattaca, the most notable film about genetic discrimination
- Genetic privacy
- Human Genome Project
- Health Insurance Portability and Accountability Act
- Genetic Information Nondiscrimination Act
- Ajunwa, Ifeoma (2014). "Genetic Testing Meets Big Data: Torts and Contract Law Issues". Rochester, NY. SSRN .
- Ajunwa, Ifeoma (2015). "Genetic Data and Civil Rights". Harvard Civil Rights- Civil Liberties Law Review. SSRN .
- Annas, George (2003). "Genism, Racism, and the Prospect of Genetic Genocide". Archived from the original on 2011-07-26. Retrieved 2008-07-31.
- Keim, Brandon (May 21, 2008). "Genetic Discrimination by Insurers, Employers Becomes a Crime". Wired.com. Retrieved May 28, 2008.
- Statement of Administration policy, Executive Office of the President, Office of Management and Budget, 27 April 2007
- "Administration News | President Bush Signs Genetic Nondiscrimination Legislation Into Law," Kaiser Daily Health Policy Report, Kaiser Family Foundation, May 22, 2008
- Rob Stein (2012-09-16). "Scientists See Upside And Downside Of Sequencing Their Own Genes". NPR.
- Amy Harmon, "Insurance Fears Lead Many to Shun DNA Tests," The New York Times, February 24, 2008
- http://www.parl.gc.ca/LegisInfo/BillDetails.aspx?Language=E&Mode=1&Bill=S201&Parl=42&Ses=1. Missing or empty
- "Senate Private Bill - Bill S-201 - Third Reading (42-1)". www.parl.gc.ca. Retrieved 2017-05-04.
- Department for Health and Human Services (2009). Genetics in the Workplace: Implications for Occupational Safety and Health. Washington, D.C.: DHHS.
- Brant-Rauf, P.W.; Brant-Rauf, S.I. (2004). "Genetic testing in the workplace: Ethical, legal, and social implications". Annual Review of Public Health. 25: 139–153. doi:10.1146/annurev.publhealth.25.101802.123012. PMID 15015916.
- Miller, P.S. (1998). "Genetic discrimination in the workplace". Journal of Law, Medicine, and Ethics. 26 (3): 189–197. doi:10.1111/j.1748-720x.1998.tb01419.x.