Genetic Testing: Is This The Next Step In The Hiring Process?

The statistics are impressive. Over the course of thirteen years as a halfback he scored 91 touchdowns and carried the ball 3,479 times for a total of 13,662 rushing yards, which is the fifth highest total career rushing yards by a running back in the National Football League.  If you are a Pittsburgh Steelers fan you know his name; you know what an inspiration he has been to the City of Pittsburgh; and you know what an inspiration he was to thousands of individuals with a disease that afflicts them and him. Jerome Bettis is his name and he has asthma. It is known by many that as a child growing up in Detroit, his mother was vehemently opposed to him playing football in high school because of his asthma. Today Mrs. Bettis is one of the proudest mothers in the world. 

When Bettis joined the Pittsburgh Steelers in 1993 through a trade with the then Los Angeles Rams, it was no secret that he had asthma. The Steelers were still willing to take a chance on him, believing he had the athletic potential to become a Hall of Fame running back.  Beyond just being a symbol of success to those with asthma, Bettis serves as a premier example of the vast divide between the misconceptions sometimes caused by medical science and a human being’s abilities and potential. 

A recent “hot button” issue faced by many companies in their hiring practices has been whether to implement genetic testing of potential and current employees in an effort to determine whether an individual’s predisposition to a health condition might affect the individual’s ability to perform essential job functions.  Although no federal law currently exists regarding the legality of genetic testing, the closest existing law recently used to argue both for and against this practice has been the Americans with Disabilities Act (ADA)    www.eeoc.gov/policy/ada/html.   The ADA prohibits medical exams that are not necessary to determine if an employee can perform essential job functions.  However, many times the real challenge for an employer comes about when the line appears to be blurred between requiring a medical test to determine whether an employee can perform essential job functions versus testing to eliminate higher health care costs.  Testing found to be done for the latter purpose can result in negative consequences for the employer.  

An instructive example of the interplay between genetic testing and the ADA is a case involving a lawsuit filed by the Equal Employment Opportunity Commission (EEOC) against Burlington Northern Santa Fey Corporation in 2002.  The EEOC filed suit on behalf of 36 of Burlington’s employees who were ordered to take blood tests after they and another 89 employees filed injury complaints with the company complaining of carpal tunnel syndrome.  The company failed to inform the employees that the purpose of the tests was to determine if they were predisposed to the disease and it was only through the diligence of employees that the purpose of the tests was discovered.  Despite the subsequent insistence by Burlington that the results of such tests were to be used to place employees in better suited positions, the company ultimately settled the lawsuit for $2.2 million.  The hardest burden for Burlington to overcome was proving that the tests were being performed to determine if the employees could perform essential job functions. 

In response to this recent wave in genetic testing, 29 states have passed legislation to prohibit genetic testing and in 2003 the U.S. Senate passed the Genetic Information Nondiscrimination Act http://thomas.loc.gov/cgi-bin/query/F?r108:1:./temp/-r108P5LysD:e115290: that would prohibit all employers from discriminating against employees on the basis of genetic tests or any other genetic information.  The Act is still pending in the House of Representatives with no scheduled date for consideration.  Therefore, if an employer decides to implement genetic testing and is not subject to a state law for guidance on the issue, it is likely that the ADA will be applied to any challenge to the test. 

Obviously, an employer should proceed with great caution if it is considering the use of genetic testing. There may be legitimate reasons an employer would order a genetic test.  For instance, in circumstances where employees work in an environment where they are exposed to airborne chemicals, a genetic test might serve the purpose of indicating an employee’s predisposition to cancer or heart problems that could manifest itself in such an environment. But as appeared to be the reason for Burlington’s decision to settle with its employees, there is not enough medical or scientific evidence to establish that the results of genetic tests are accurate or even remotely provide a means to determine if an employee can perform an essential job function. 

Imagine for a moment if early in his career a genetic test purported to indicate that Jerome Bettis was predisposed to asthma.  Would it then have been appropriate for the Pittsburgh Steelers to use such a test to deny him employment?  In such a situation, not only would a genetic test with little or no scientific or clinical credibility seem unfair, but even the onset of a disease diagnosed in genetic tests as a possibility does not necessarily prove that the employee will be unable to perform essential job functions. One would be hard pressed to argue that Jerome Bettis was unable to perform the essential functions of his job.  

www.ncsl.org/programs/employ/empdisc.htm

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