"Knickel" and dime issues: an unexplored loophole in New York's genetic discrimination statute and the viability of genetic testing in the sports employment context.

AuthorTrumble, Paul D.

It is better to know some of the questions than all of the answers.--James Thurber (1894-1961) (1)

  1. INTRODUCTION

    It is often stated that "[s]port is a microcosm of society." (2) In some respects, this statement rings true. Athletes involved in competition, like individuals functioning in society, must make immediate decisions, must trust in others, and must follow the rules. Because of such similarities, the law often draws little distinction between what is appropriate in the realm of sports and what is appropriate for the remainder of society. However, as new complexities emerge in the modern sports era, particularly with respect to genetic testing in professional sports, it has become increasingly clear that a law designed for individuals functioning in society may be insufficient for regulation in the sports world.

    The issues of genetic discrimination and sports collided in October 2005 when the Chicago Bulls, a member of the National Basketball Association (NBA), asked one of its team members, Eddy Curry, to undergo genetic testing to diagnose a suspected heart arrhythmia. (3) Curry refused, citing American constitutional privacy rights. (4) Instead of challenging Curry's position under Illinois law or the United States Constitution, the Bulls opted to trade Curry to the New York Knicks. (5) In so doing, the arena for Curry's legal battle shifted to New York, placing the State's genetic discrimination statute under possible judicial scrutiny. However, as the Bulls had done in Illinois, the Knicks also opted to avoid challenging Curry's position under existing state law. (6) Instead, Curry agreed to multiple physical evaluations that proclaimed his good health, (7) enabling the Knicks to insure his multimillion dollar contract. (8) As a result, New York's genetic discrimination statute remains untested in the sports employment context.

    Suppose the Knicks had challenged Curry's right to refuse genetic testing under section 296 of New York's Executive Law, the State's genetic discrimination statute. Would the Knicks have prevailed? An exploration of the scenario purposefully avoided by the Knicks reveals that the Knicks may have prevailed under the "increased risk" exception contained in section 296(19)(b), (9) thus circumventing the policy goals of New York's genetic discrimination law and forcing Curry to be genetically tested. Although successful use of this exception may have far reaching consequences in both the sports employment context and the ordinary employment context, (10) this Comment will argue that use of the section 296(19)(b) loophole should be limited to the sports employment context.

    This Comment further contends that marked differences between employment in the sports context and employment in ordinary contexts require that the statute be amended to follow two emerging international legal trends: one recognizing the need for laws uniquely tailored to the sports employment context (11) and a second allowing for limited genetic testing. (12) Acknowledging the extreme financial and organizational dependencies of sports employers on the health of athlete-employees, New York sports employers must be afforded the right to test athletes for physically-limiting genetic conditions. New York, therefore, must not only amend section 296 of its Executive Law to eliminate the use of the increased risk exception in ordinary employment contexts, but also amend section 296 to permit qualified (13) genetic testing in the sports employment context.

    Support for this possibly controversial proposal is presented in the six sections of this Comment. Section I introduces genetic testing in the sports employment context. Section II then discusses the historical backdrop of the global interest in genetics and briefly revisits the currently limited federal and state protections against genetic discrimination. Section III shifts the focus to specifically address the history of genetic discrimination legislation in New York that lead to the 1996 revision of section 296. Section III also analyzes the increased risk exception found in section 296(19)(b). Next, Section IV explores the likelihood and the possible fallout of the Knicks' success if Curry's decision was challenged under current New York law. Section V then discusses two emerging international legal trends and suggests that the extreme level of sports employer dependence on the health of athlete-employees necessitates that New York incorporate aspects of both trends in an amended section 296 that would favor qualified genetic testing in the sports employment context. Finally, Section VI concludes this Comment by addressing recent modifications in employer genetic discrimination policies.

  2. BACKGROUND: A GROWING INTEREST IN GENETICS RECEIVES LIMITED FEDERAL AND STATE RESPONSES

    1. Global Interest: The Human Genome Project

      In October 1990, an international effort known as the Human Genome Project (HGP) was undertaken to distinguish each of the approximately 35,000 human genes with the goal of understanding the role of genes in health and disease. (14) With this knowledge, the HGP aimed to identify and treat the underlying causes of disease, as opposed to merely suppressing symptoms through medication. (15) The United States, along with such nations as Australia, Brazil, Canada, China, Denmark, France, Germany, Israel, Italy, Japan, Korea, Mexico, the Netherlands, Russia, Sweden, and the United Kingdom, participated in the HGP by establishing human genome research programs. (16) The United States' HGP consisted of the Department of Energy's Human Genome Program and the National Institutes of Health's National Human Genome Research Institute. (17)

      The HGP was scheduled to conclude in 2003 and was considered ahead of schedule when, in June 2000, an initial draft of the human genome was finalized. (18) However, the unanticipated early success of the HGP created unforeseen obstacles. New questions were posed as to the legal, moral, and ethical implications of openly discernable genetic information. (19) Such questions were of unique concern in the employment arena where employers might use genetic information as a basis for employment decision-making. (20) Like other countries, (21) the role of genetic information in employment decision-making, as is evidenced by the Curry saga, remains an unsettled issue in the United States.

    2. Limited Federal Responses: The Occupational Safety and Health Act, Title VII, the Americans with Disabilities Act, and the United States Constitution

      Existing federal legislation has been slow to respond to the threats of genetic discrimination in employment. (22) The primary federal protections for workers were constructed before the inception of the HGP; therefore, they were not tailored to provide significant protection against employer genetic discrimination. (23) With current federal legislation failing to directly address genetic discrimination, employers are left to interpret which tests are acceptable and which tests constitute unlawful genetic discrimination. Furthermore, Congress has done little to curtail the growing threats posed by genetic testing. Existing federal legislation has not been amended to directly address genetic discrimination, and new legislation has been enacted at a slow pace. (24) Because an in-depth analysis of current federal protections against genetic discrimination is beyond the scope of this Comment, the following subdivisions only briefly explore current federal law so as to provide sufficient background for a contextual understanding of New York's genetic discrimination statute.

      1. The Occupational Safety and Health Act

        The Occupational Safety and Health Act (OSHA), passed in 1970, was designed to protect workers from dangerous work environments (25) and thus offers little protection in the realm of genetic discrimination. Under OSHA, employers are obligated to create "safe and healthful" work environments for employees. (26) To comply with this requirement, an employee may be required to submit to medical testing and evaluations to determine if any workplace hazards exist that pose a unique threat to the safety and health of the employee. (27) In addition, OSHA requirements also create a statutory duty owed by employers to employees. (28)

        Consequently, an employer's failure to test an employee not only subjects the employer to liability under OSHA (29) but also subjects the employer to liability under negligence tort theories. (30) Therefore, far from protecting employees from genetic discrimination, OSHA is in actuality a tool by which employers can insist on genetic testing under the cover of liability protection. (31) Although OSHA has clarified that it does not require genetic testing and that its standards should not be interpreted to limit employee opportunities, OSHA has offered little direction as to the legal status of genetic testing within its guidelines. (32)

      2. Title VII

        Facially, Title VII of the Civil Rights Act (Title VII) protects against discrimination solely on the grounds of "race, color, religion, sex, or national origin." (33) Title VII, however, does provide some inherent limited protection against genetic discrimination based on the disparate impact theory. (34) This protection, however, is restricted to groups that would otherwise be protected under the Act. (35) More specifically, Title VII is applicable when genetic testing eliminates a job candidate based on the presence of a genetic trait that is unique to the applicant's protected class. (36) For example, testing for genetic traits related to sickle cell anemia (37) or breast cancer (38) falls under Title VII protection because protected classes, African-Americans and women respectively, are implicated by the unique nature of such traits. Therefore, because Title VII was not originally constructed to protect against genetic discrimination, the incidental protections that Title VII offers protected classes fail...

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