Worrying Over Genetic Discrimination

Boulder, Colorado, officials want to add genetics to laws that ban race, gender and age discrimination to ensure residents are not hurt by information that companies can glean from their genetic makeup.

At least 47 states and one county have some form of law prohibiting genetic discrimination. Boulder is the first city to consider a comprehensive proposal covering housing and public accommodations as well as employment, according to the National League of Cities.

"This is an area where the technological capabilities have grown rapidly and it is important that the social institutions respond and take responsibility," Mayor Will Toor said.

Boulder officials believe the proposed measure could help down the road as genetic science advances and testing becomes cheaper.

"We'd like to be passing ordinances before we have a terrible problem and no solution," City Attorney Joe de Raismes said.

New research may make it possible to identify an individual's lifetime risk for cancer, heart attack and other diseases. City leaders say such research raises ethical and legal questions.

For example, employers and other companies could use the information to screen out candidates. Or, a pre-employment physical, from DNA testing to family medical histories, could be required and used by companies.

The Equal Employment Opportunity Commission contends even predispositions are covered under the Americans with Disabilities Act. The courts have not ruled on any cases.

"The potential for abuse and misinterpretation for what the results of a genetic test may mean are huge," said Councilman Phil Andrews of Montgomery County, Md. The county approved a genetic anti-discrimination law in 2000 with no opposition.

Of 2,100 businesses surveyed nationwide, 30 percent said they asked applicants for genetic information. Of them, 7 percent used the data in hiring and promotion decisions, according to the American Management Association.

"This is a crystal ball," said Doug Peterson, a senior policy analyst at the National League of Cities. "If you can predict with even high probability that some people are going to be a risk and others aren't, you can deny things."

Some states have added the use of genetic information to discrimination statutes while others protect the information under privacy laws.

Colorado law says that genetic information is a property right; that it is owned by the individual and should be governed by privacy statutes. Twenty-seven other states take a similar approach, protecting genetic information under privacy laws.

The federal courts have never decided a genetic testing case.

A lawsuit brought against Burlington Northern Sante Fe was settled for $2.2 million in August 2000. The railroad had sought genetic testing to determine whether workers complaining of carpal tunnel syndrome were predisposed.

A second suit is pending in Florida by a woman fired by her employer after a genetic test showed she had a rare disease called alpha-1 antitrypsan deficiency, which sometimes results in emphysema or liver disease.

Federal employees have been protected from genetic discrimination for two years under an executive order signed by former President Clinton. The U.S. Congress has debated a number of bills since, but none have passed. The EEOC anticipates a genetic anti-discrimination bill to be reintroduced in the next session.

By Jennifer Hamilton