Gene Discrimination Problems

Further legislation to regulate the use of genetic testing is by no means necessary. While there is much debate as to whether or not individuals' freedoms and rights will be violated by the ability to pretest their dispositions to medical disorders, to date there has been no evidence of employers using this information to discriminate against current or potential employees. There are currently enough safeguards in effect, from sources such as the Americans with Disabilities Act, Title VII of the Civil Rights Act, and the Health Insurance Portability and Accountability Act, to protect the rights of patients. Furthermore, the business community and more importantly, individual consumers can gain benefits from the use of genetic screening by insurance companies.

As Lawrence Lorber, a representative of the United State Chamber of Commerce, made clear in the textbook there are currently controls in place to prevent employers from discriminating against employees based upon the results of genetic test. Adequate safeguards are provided in the American with Disabilities Act and Title VII of the Civil Rights Act. Even in states with notoriously litigious track records, such as California and New Jersey, there has not been a single case brought on the grounds of genetic discrimination. He further goes on to add "there ought to be a reluctance to add to this mass of regulation and a requirement that any law address a real issue which is not dealt with by the existing body of regulation." (Lesser 381) Lorber basically argues that there is no sense in writing legislation to solve problems that do not exist.

Currently the Americans with Disabilities Act (ADA) prohibits "any medical testing that isn't necessary to determine whether an employee can fulfill essential job functions."(Flahardy 1) As evidenced in a case brought against Burlington Northern Railroad by the Equal Employment Opportunity Commission (EEOC) alleging that the employer violated the ADA by submitting employees' blood to be tested for genetic predispositions to carpal tunnel syndrome, BNSF agreed to settle the case for $2.2 million dollars. (Flahardy 1) BNSF quickly saw its wrong doings once the charges were brought and quickly settled the case to avoid any additional penalties. This is a striking example to show the effectiveness of the current legislation in place. The position of the ADA against genetic discrimination is so firm that BNSF was not even willing to take the chance to challenge the law in court. BNSF's settlement of this case proves that the current legislation adequately regulates the business environment and will prevent employees from making personnel discussions based upon genetic information.

On October 10, 2005, IBM became the first corporation to proactively announce that it would not use genetic information to make employment decisions. (Solove) IBM's chairman Sam Palmisano wrote in a letter to employees "business activities such as hiring, promotion and compensation of employees will be conducted without regard to a person's genetics." Despite the cost savings that could be achieved by identifying and not hiring potential hires that bring genomes which are likely to lead to illness and lost work productivity, IBM has elected not to use genetic screenings. While searching for its motives to create such a policy, one factor that surely must be considered was that IBM weighed the legality of genetic screening and found that the current legislation in place would prevent the company from discriminating on genetics grounds. IBM feels strongly enough that the ADA prohibits genetic testing so the question must asked - why is there a push for more stringent legislation if the current legislation is already serving the purpose?

In a news story that gained more headlines than the previous examples we find the conflict between Eddie Curry and Chicago Bulls of the National Basketball Association. During the course of the 2005 basketball season Curry had two episodes of chest pains and lightheadedness that were diagnosed as a heart arrhythmia. Based upon the fact that his mother had similar episodes in her past, the Bulls demanded that Curry have his genome mapped to determine if it was a genetic disorder, such as hyperthrophic cardiomyopathy, that was causing his arrhythmia. Former basketball players Reggie Lewis and Hank Gathers died on the court from this condition. Bulls general manager John Paxson was quoted saying to Sports Illustrated, "everybody tried to make this an ethical employer-employee issue, which we never thought about. We wanted to do everything we possibly could to safely put him back on the floor." Paxson offered Curry a contract that would guarantee him $32 million dollars for four years if the test showed no negative results or a guaranteed annuity of $400,000 a year for 50 years if the genetic tests showed that Curry has hyperthrophic cardiomyopathy. Curry refused the deal and was traded to the New York Knick who did not require a genetic test. Paxson later said, "This was not a basketball decision. That was a personal decision, and we made it because we care about him as a human being." (Sports Illustrated 10/13/05) If more legislation is created to protect employees it is conceivable that the Chicago Bulls could have been held liable for suggesting that Curry submit to testing where they were just making sure