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There are several moral, ethical, legal, social and cultural issues with genetic screening at the workplace. The employers would like to subject their employees to genetic testing as they would like to know the genetic weaknesses and problems that an individual may have an according employ the individual or dismiss him (in case the employee is already employed). On the other hand, the employee has certain legal and ethical rights which would ensure protection of privacy at the workplace.
Is an employer who obtains samples of the employee’s gene and subjects the sample to genetic testing guilty of infringing up on the privacy rights of the employee? There are some limitations for others in them obtaining or genetic samples for testing and knowing our personal issues. On the other hand, organizations feel that getting access to an individual’s genetic samples would inform them about future problems they could be facing at the organization.
An employer can potentially identify candidates with criminal tendencies, drug abusers, serious mental, emotional and physical disorders, etc; from being employed and in this way can prevent major problems from occurring at the workplace. However, there is a legal side to the story as well. As people have strong rights to privacy and autonomy, the individual cannot be subjected to examination of the genes without sufficient consent and permission.
In an effort to curb this menace of employers secretly obtaining genetic samples and subjecting them to screening, courts have supported the employee’s stand on the right to privacy (Spaak, 2004). One such case was Norman-Bloodsaw v. Lawrence Berkeley Laboratory – Regents of the University of California, held before the California Supreme court in February 1998. This case was an appeal against a district’s courts decision seeking violation of Title VII of the Civil Rights Act 1964 that grants certain Constitution rights to privacy.
This ruling effectively protected the employees and job candidates from being screened without consent and prior approval. The employers were trying to reduce financial risks and prevent problems from occurring at the workplace by knowing the genetic make-up of the individual and in this way permit employment. However, the court gave a strong stand on protecting the rights to privacy of the employee (Net Industries, 2009). The employee in this case Vertis Ellis worked for Lawrence Berkeley National Laboratory.
Her employees were conducting a research study on breast cancer genes, the human genetic network, etc, and they were testing thousands of samples. One day, Ellis happened to stumble over her medical records with the company, and found several medical reports conducted for several conditions including syphilis, sickle-cell trait, pregnancy, etc, and to her knowledge for none of these tests was permission taken. She inquired to the laboratory and in fact found that tests had been conducted over the last three decades of her employment without her permission.
The organization had secretly obtained blood and urine samples and subject them to various tests. Several other employees also found their rights to privacy and been tested and hence filed a case against the organization. The employees also complained that the rights under the Civil Rights Act 1964 had been infringed as only Black and female employees were subjected to sickle cell trait gene testing. This was a violation under Title VII of the Act. Besides, they also claimed infringement under the American Disabilities Act as these tests were neither required for professional or business purposes.
In the Year 1996, the District Court of San Francisco gave its decision in favor of the employers saying that the limitations act applied and the case lacked demonstration of damage to the individuals under Title VII. The court also said that the three tests that were done were a part of the comprehensive medical examination that was consented by the employees. However, the appeal court turned down the claims made by the district court. It said that the limitations act would only apply from the time the individual become aware of damages.
The Judge Reinhardt found that the balance of interests of conducting these tests were against the employees as such tests were not required and were meant to hurt the privacy of the employees. The court strongly felt that there was a violation under the Article 1 of the Constitution. Three elements needed to be demonstrated included existence of a privacy right of the individual, an exception right to privacy of the individual under that particular circumstance, and an offensive action by the defendant which invades the right to privacy of the plaintiff.
Under Title VII of the Civil Rights Act, the Black women were subjected to unconstitutional invasion of privacy by conducting genetic tests and pregnancy tests. Reinhardt considered only those actions after January 1962 to be eligible as claims under the ADA. He further provided an injunction and relief for damages to the aggrieved employees. This was the first case in which the employees were protected of genetic privacy at their workplace (Net Industries, 2009).
Another case in which the genetic privacy of the employees was protected was the Equal Employment Opportunity Commission v. Burlington Northern Santa Fe Railway (2002), in which about 36 employees were provided with a compensation of 2. 2 million dollars of compensation. The employers found that the employee’s claims for carpal tunnel syndrome were high and hence conducted genetic test to determine risk for carpal tunnel syndrome, without taking the consent of the employees. The employers tried to protect themselves by saying that their acts were within OSHA.
However, the employer’s main aim of doing these tests were not for the benefit of the employees, but to weed out those employees and avoid paying higher insurance premiums for those employees who were susceptible to carpal tunnel syndrome. However, several rules protect the genetic material of the employees to be protected against screening from the employers. In the year 1995, the EEOC applied the ADA to extend disability to even genetic risk of developing a disease. The employees are protected against discrimination based on certain genetic characteristics.
The court even provided that the 4th Amendment of the US Constitution would be aiming against protection from unreasonable searches and seizures (Spevak, 2007). However, in the future, there is going to be more extensive use of genetic testing and even employers are going to make use of this technology. Scientists are able to map the entire human genome, and by screening the individual’s genes, they are able to understand the differences to normal and accordingly determine if the individual is sensitive to any disorder. More and more diseases can be subjected to genetic examination.
With time these tests are becoming more and more accurate (ABSW, 2008). The OSHA has strongly recommended that the workplace be free from hazards and in case the employee suffers damages, they would have to compensate for damages. It is a known fact that several chemicals at the workplace can increase the chances of the employees developing conditions such as sickle cell anemia (especially when they have the sickle cell trait). Hence, employees would in the future try to identify genetically susceptible individuals and prevent them from entering the company by conducting unauthorized genetic tests.
Some employers may even justify the use of genetic screening as a method to prevent susceptible individuals from entering the company. However, it is important to note that the genetic make-up of the individual is private and is protected to the right of privacy. It would be unethical and illegal for any person to access the genetic information without the consent of the individual (Andre, 2008). The use of genetic tests should have a fair rationale and should not be targeted to a particular ethical group.
The employee or the job applicant should be fully educated and aware of the reasons for conducting such tests. In the future as these tests become more and more sensitive, easier, cheaper and accurate, there would be greater chance for misuse by the employers. References Andre, C. (2008). Read My Genes: Genetic Screening in the Workplace, Retrieved on May 8, 2009, from SCU Web site: http://www. scu. edu/ethics/publications/iie/v4n2/genes. html Association of British Science Writers (2008).
The future of genetic screening, Retrieved on May 8, 2009, from ABSW Web site: http://www. absw.org. uk/Briefings/future_of_genetic_screening. htm Net Industries (2009). Norman-Bloodsaw v. Lawrence Berkeley Laboratory – Further Readings, Retrieved on May 8, 2009, from Net Industries Web site: http://law. jrank. org/pages/12809/Norman-Bloodsaw-v-Lawrence-Berkeley-Laboratory. html Spaak, T. (2008). The Idea of a Right to Genetic Privacy, SSRN, 326-339. http://papers. ssrn. com/sol3/papers. cfm? abstract_id=923548 Spevak, T. (2008). Genetic testing in the workplace, Retrieved on May 8, 2009, from TFL Web site: http://www. thefreelibrary. com/Genetic+testing+in+the+workplace-a0158957567