Genetics and the Workplace: Ada Applicability to Genetic Information

• Publication year: 1997
• Pages: 75
• Citation: Vol. 26 No. 4 Pg. 75

26 Colo.Law. 75 Colorado Lawyer 1997.

1997, April, Pg. 75. Genetics and the Workplace: ADA Applicability to Genetic Information

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75

Vol. 26, No. 4, Pg. 75

The Colorado Lawyer
April 1997
Vol. 26, No. 4 [Page 75]

Specialty Law Columns
Technology Law and Policy Review
Genetics and the Workplace: ADA Applicability to Genetic Information
by Lynda M. Fox, Sherman G. Finesilver

Column Ed.: Letty Friesen of Ireland, Stapleton, Pryor &amp Pascoe, P.C., Denver - (303) 623-2700

This column is prepared by the CBA Technology & the Law Forum Committee. This month's article was written by Lynda M. Fox, Denver, vice-president and general counsel for the Eleanor Roosevelt Institute for Cancer Research, Inc (303) 333-4515, and Sherman G. Finesilver, chief judge, U.S District Court, District of Colorado, retired. The authors wish to acknowledge the contribution of attorneys Janet Savage and Richard Sander of Popham Haik Schnobrich & Kaufman, Ltd., in their serving as counsel for the parties in the mock trials.

The Human Genome Project, as enacted by Congress, formally began in October 1990. Its unprecedented success in mapping and characterizing human genes has led to concerns about how the growing body of human genetic information will be used. The possibility that one of the greatest risks posed by new genetic technologies may be the unanticipated use of the resulting genetic information stands in sharp contrast to traditional bioethical concerns for the physical risks posed by new medical technologies. The Ethical, Legal and Social Implications component of the Human Genome Project has identified the following areas of major concern in this regard: employment discrimination, health insurance, privacy of genetic records, and introducing new genetic tests into clinical practice.1 A recent article appearing in the Rocky Mountain News addressed many of these issues.2

As individuals turn to litigation to resolve dilemmas arising from the increased availability of genetic information, the growing tide of genetic evidence threatens to engulf the U.S. legal system.3 While legislatures and administrative agencies are attempting to address some aspects of how and when genetic information may be used in legal proceedings, creative educational methods are needed to de-mystify the rapidly increasing scientific complexities so that fundamental legal concepts may be applied. In response to this need, the authors have developed a mock trial that addresses a case of alleged employment discrimination based on genetic test information.

In the mock trial, expert witnesses explain relevant concepts of molecular biology and genetic testing, and the attorneys argue the applicability of the Americans With Disabilities Act ("ADA").4 The audience for the mock trial acts as the jury, and, with jury instructions from the court, the audience decides the case. The mock trial and its presentation to two diverse audiences are discussed in further detail later in this article.

Background

Historical Considerations

While mapping of the human genome constitutes relatively new science, concern for the use of genetics in various aspects of society has existed since the mid 1800s, when Francis Galton first published his theories of eugenics.5 Early in the twentieth century, eugenic themes took a decidedly ethnic turn with the enactment of immigration laws directed toward "purifying and keeping pure the blood of America."6 During the same era, the work of Charles Davenport led to the establishment of the Eugenics Record Office that was designed to collect large quantities of human hereditary data in order to advise people better on what constituted fit marriages.7 Perhaps one of the most widely known consequences of these social themes was the coerced sterilization of many individuals who were poor, immigrants, or institutionalized.8 In 1972, the U.S. Supreme Court upheld these state-sanctioned sterilizations in Buck v. Bell,9 which in subsequent cases has been seriously undermined but never overruled.

In more recent times, genetic discrimination reached the area of employment in connection with the sickle cell screening programs in the 1970s. Widespread screening of the African-American community for sickle cell carriers was instituted, even though neither prenatal diagnosis nor treatment was available. Many state legislatures mandated these screening programs until a federal law in 1972 required that federal funds could be used only for voluntary screening programs. Inadequate confidentiality provisions led to widespread discrimination in employment and insurance practices. As with lacking confidentiality, inadequate education led to...