Banning Genetic Discrimination

Business groups support the purpose of the law but worry about the unintended consequences that may ensue from the restrictions on information about genetic information. The bill leaves open the possibility that employers can be sued for just receiving -- not acting upon -- a worker's genetic information.

The bill President George W. Bush will sign outlawing employment and health-insurance discrimination based on genetic information passed the House and Senate by overwhelming votes. But the legislation's political popularity cloaks its potential unintended consequences.

"I think the business community has done an excellent job of pointing out the potential pitfalls, some of which have been addressed, others not; but it is extremely difficult to anticipate the theories that creative plaintiff's lawyers and bureaucrats will construct to try to lead this law into unintended areas that do little or nothing to advance its purposes," says Dan Yager, senior vice president and general counsel of the HR Policy Association.

The Senate passed the Genetic Information Non-Discrimination Act by a vote of 95-0 on April 24 after purportedly strengthening some language that protects insurance companies from excessive lawsuits.

The bill was then sent back to the House, which approved a previous version by a vote of 420-3, for a second vote on May 1, for which the outcome was not in doubt. Bush has agreed to sign the final bill.

The final version leaves open the possibility that employers could be sued for receiving an employee's genetic information, even if that information is never used.

Burt Fishman, counsel for the business coalition that lobbied for changes in the bill, a group that includes the U.S. Chamber and the Society for Human Resource Management, says, "Under the bill, genetic information may lawfully be acquired from some sources -- such as Family and Medical Leave Act medical certifications and workers' compensation forms -- whereas the same information from more likely sources -- such as employer-provided sick or family leave that is not FMLA-qualifying, ADA accommodations or discussions regarding health insurance coverage under HIPAA or COBRA -- is not allowed."

Fishman says he is not sure what employers can or should do differently now that GINA has been enacted. "On the basis of all the available evidence, genetic discrimination exists principally in the minds of the advocates for this bill," he says. "Forty-one states have laws prohibiting it and there has yet to be a case, anywhere. I believe SHRM and others have surveyed their memberships and learned that not only do employers not consider genetic history in employment decision, but most employers, who do have other things on their minds, have little understanding of what is at issue.

"HIPAA has banned the use of genetic information in group health insurance," he continues, "so, despite the fear-mongering, almost everyone in the U.S. with health insurance has had no reason to be concerned on that front. As I believe I stated in my testimony, this is a remedy in search of a problem."

The bill, in one form or another, has kicked around Congress for more than a decade, sometimes passing one chamber but never the other in the same year. That failure was attributable to concerns about the bill's language from both the health insurance industry and the employer community.

Sen. Tom Coburn, R-Okla., who had held up consideration of the bill on the Senate floor for the past year, forced the bill's sponsors to accept an amendment, which was meant to address health insurance company liability concerns, prior to the Senate vote on April 24.

At hearings in a House committee on Jan. 30, 2007, Fishman, counsel to the Genetic Information Nondiscrimination in Employment Coalition, noted a number of reservations about the bill. He emphasized that the business groups supported the bill's objective -- to prevent discrimination -- but explained that the groups were concerned about unintended consequences, especially because there have been very few employee lawsuits in this area.