Discrimination at Work

1
Discrimination at Work
2
Health Status Discrimination

• Not new employees with visible disabilities or
  pre-existing conditions (whether genetic or not)
• sometimes denied jobs
• more often excluded from employers health plan,
  or
• plan is revised to exclude Es condition (HIV)

3
Genetic Propensities

• Until recently, there was little capacity to test
  for genetic propensity for future illness.
• Unclear how much proxies were used, if at all, in
  the employment decision
• e.g. family history
• Proxies may have been used by Ers health insurer
• One exception in 1970s African-American
  carriers of sickle cell trait!

4
The new twist?

• The rapidly growing number of genetic tests
  available, such as
• colon cancer
• breast cancer
• carpal tunnel syndrome
• Use may grow as cost of tests comes down.

5
Only a few reported cases

• Burlington Northern Santa Fe RR
• 20 (?) employees who complained of work-related
  carpal tunnel syndrome
• tested for Chromosome 17 deletion
• Why spend the money?
• 1.To assign workers away from typing jobs?
• 2.To defeat workers compensation claim?

6
And again

• Lawrence Berkeley Laboratory
• pre-placement employee physicaltests for
• syphilis
• sickle-cell trait
• pregnancy
• employees were never told this.

7
Why would an employer care?

• Health insurance workers comp costs
• Productivity
• absences from work
• short work-life (training costs)
• genetic condition hurts work (prone to
  depression)
• Dangerous
• to others (e.g. prone to seizures? )
• to self only? ( e.g. more susceptible to
  hazardous substances?)

8
Modern responses

• Limit use of genetic information by certain
  parties
• Employers
• Health insurers and employer-sponsored plans
• Restrictions on disclosure of genetic information

9
Modern responses

• Employment discrimination restrictions
• Health insurance regulation
• Restrictions on disclosure of genetic information

10
A map of the legal terrain

• Initially, no bar on genetic discrim
• So Ps used Americans with Disabilities Act
  (ADA)
• protects persons with disabilities, including
  genetic disabilities
• Later, state anti-discrimination laws
• including Missouri
• HIPAA
• limits use of health status by group health
  insurance practices, including employer plans

11
ADA Employment Protections

• Employers with 15 or more employees
• Cannot refuse to hire a qualified individual
  because of disability
• cannot discriminate in pay or other conditions of
  employment.
• Cannot exclude from employers group health
  insurance because of disability.

12
When can the data be used?

• 1. No violation if applicant or employee is not
  qualified for the job.
• 2.

13
Key limits

• Only persons with disabilities
• Only if qualified for the job
• able to perform the essential functions of the
  position after reasonable accommodation
• consideration is given to the employers judgment
  about what is essential

14
Disability

• an impairment that substantially limits a major
  life activity
• not enough that it disqualifies you from the job
  you covet.
• impairment of reproduction suffices
• Bragdon. HIV infectiondisability
• A record of such impairment, or
• Being regarded as having one.

15
Are genetic conditions disabilities

• Yes, if so symptomatic that it impairs.
• not carpal tunnel said one court.
• Yes, if a record of impairment
• e.g. previously so ill that were disabled bc
  (e.g. cancer)
• assuming that discrim is based on that record
• Undecided if
• still Asymptomatic or only minor symptoms
• just a carrier.

16
Asymptomatic Persons

• Ex healthy workers with gene indicating
  susceptibility to breast cancer.
• EEOC 1995, Compliance Manual update
• asymptomatic disabled bc regarded as
• no legal force
• no cases directly on point yet

17

• Ers rebuttal?
• Only protected if regarded as CURRENTLY disabled.
• Authority?
• Better view?
• Does it makes sense to limit to currently
  disabled people?
• Does the language of the statute dictate this
  result, as the Court concluded?

18

• Another theory for employee with asymptomatic
  genetic condition?
• Currently impaired reproduction
• Convincing?
• If serious enough and likely enough?
• Dominant or recessive?
• Carpal tunnel or Tay-Sachs?

19
Are carriers disabled?

• Yes, if erroneously regarded as currently
  impaired (recall sickle-cell testing)
• if merely regarded (mistakenly) as a risk for
  future impairment, then undecided (see above)
• What if employer discriminates bc afraid that
  employee will have chronically ill kids
• drive up cost of Ers health plan

20
Are carriers disabled?

• ADA protects against discrimination due to
  association with persons with disabilities
• like having disabled children? Probably
• does this apply to potential future children?????

21
Conclusion about coverage

• persons whose genetic traits have already led to
  disabilities good protection
• but only if serious (impairs)
• Average intelligence? Endurance? Immunities?
• only if qualified (next class)
• carriers will sometimes be protected.
• people with genetic propensity for future disease
  may not be protected.
• depends on court agreement with EEOC