Genetic testing - human rights nightmare or useful recruitment information?

Genetic testing is here to stay, it would seem. It has become increasingly common in the US, for example, and this report in the Sydney Morning Herald comments on some cases in Australia where people have been refused life insurance because of medical conditions revealed by genetic testing. In one case, a woman was refused insurance due to a genetic predisposition to cancer.

The number of cases where people have been refused insurance on the basis of genetic testing is small. However, as technology improves and the rate of take up by insurers increases, presumably this could rise significantly.

There is also potential for this to be used in the employment field. HumGen a website which contains information on the ethical, legal, and social issues of human genetics, points out that a genetic condition could make it more difficult to carry out certain tasks, could require treatments that cause a prolonged absence from work, or could cause an employee to become disabled before retirement. An employee's genetic make-up can also increase their susceptibility to contracting disease upon contact with certain substances present in the workplace. Further, as with other medical conditions, genetic conditions could be a health and safety issue (for example, heavy machine operators with epilepsy).

But is it reasonable to allow employers to make use of genetic information to rule out candidates based on these sorts of concerns? Australia's Human Rights Commissioner has called it unlawful discrimination. In New Zealand, to refuse a job based on a genetic condition may well be disability discrimination, although the wording of the definition of "disability" leaves plenty of room for argument. In the US, concern about the issue has already resulted in legislation, in the form of the Genetic Information Non-Discrimination Act 2008, prohibiting discrimination on the basis of genetic information by insurers and employers (this newsletter from the US firm Fox Rothschild contains a useful summary).

It seems to me that this sort of testing opens up a can of worms. You can argue that an employer should have access to information about a genetic condition that presents a genuine health and safety risk, and perhaps testing should be allowed on that sort of limited basis. But in other situations where there is no risk to staff or visitors, such as the mere possibility of absence from work some time in the future, it becomes more difficult to support.

 

Greg Cain

Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.

 

 

Photo/Glenn Jeffrey