Remember when the study of genetic information was deemed to be the purview of those in the medical field or reserved for films and television shows that were classified as “futuristic science fiction”? Not anymore. Today we live in a world where everyone is fully aware that their own genetic code and family history could be easily obtained, analyzed, and dissected, along with the sheer paranoia that comes with that knowledge.
This awareness is the result of extreme technological and medical advances and their dissemination, and accompanying commentary, through articles, blogs, and anything else that resides on the Internet. If that’s not enough, just turn on the TV or go to the movies and you’ll be inundated with characters being persecuted because of their genetic makeup.
The newest X-Men movie opened this past week, and while it’s a comic book movie filled with action and time travel, the underlying theme (yes, there is one) concerns the fear and subsequent discrimination and government action against individuals with mutated genes. On Orphan Black, BBC America’s hit TV show (yes, it’s on BBC America and yes, it’s quite popular), the main character discovers that she is one of many clones leading their own independent lives, and who eventually finds herself (or themselves) in the cross-hairs of the authorities, the medical institution that seemingly “created” them, and a mysterious religious organization with unknown motives. On Game of Thrones recently, Tyrion Lannister, on trial for the murder of King Joffrey, angrily exclaims that he is “guilty of being a dwarf,” not of killing Joffrey, noting his belief that his genetic predisposition is the reason he is being condemned.
What’s the relevance you ask? Well, I’m not suggesting employers need be worried about the disciplinary procedures related to an employee who has adamantium claws like Wolverine, or about the repercussions of an employee disclosing he or she is a clone. Nor am I suggesting that employers have highly sophisticated screening mechanisms to ensure that only genetically superior individuals can work there such as in the 1997 movie Gattaca.
But the truth is that people watch these type of shows and movies in droves, and read articles about genetic testing in the news or on the Internet, and come away believing the more subtle nuances and themes presented. Is it that genetic mutations will make someone able to fly? No. But is it that someone’s genetic background and information can be easily obtained, either by the government or their employer, and potentially used against them? Yes.
And while some part of this is paranoia and fear, some has actually become reality. Such a reality that the Genetic Information Nondiscrimination Act of 2008 (GINA) was enacted. Title II of GINA, which took effect on November 21, 2009, makes it illegal to discriminate against employees or applicants because of genetic information and strictly limits its disclosure. In addition to GINA, a number of states have laws prohibiting discrimination on the basis of genetic information.
Certain genetic traits also are already protected by other statutes. For example, people of short stature are often protected by the Americans with Disabilities Act because certain known causes of dwarfism are protected as disabilities. GINA, however, greatly expands the protection afforded to an individual’s genetic information. Just last year, the Equal Employment Opportunity Commission (EEOC) filed its first lawsuit against an employer for genetic discrimination under GINA. The employer had requested an employee provide certain family medical history during its post-offer medical examination, a violation of GINA, and ended up paying $50,000 in its settlement with the EEOC.
While certain exceptions apply, such as information obtained in connection with the Family and Medical Leave Act process, employers need to be wary not to request information from employees that could violate GINA so that it does not appear later that an adverse decision was made based upon this information. While it may seem like paranoia, an employee may believe that his or her genetic information was obtained by the employer and used as a basis for an employment decision. After all, this injustice is happening to their favorite characters on both the small and big screen virtually everyday.