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What is wrongful termination based on genetic information?

This blog has discussed many of the common types of employment discrimination. The prohibition against discrimination in, or termination of, employment based upon race, ethnicity, gender, or religion is generally well-established. But modern science has added a new wrinkle to the employment discrimination landscape: discrimination based upon genetic information. Due to advances in genetic sciences, including the massive Human Genome Project, information contained in individuals' genetic code is more easily available, and more informative, than ever before. So, how has the law changed to keep up with the science?

The "Genetic Information Non-Discrimination Act of 2008" (GINA) is a federal statute passed by congress and signed into law by former president George W. Bush. This law purports to make illegal discrimination against employees in hiring or advancement in employment, or the termination of employment, based on genetic information available to the employer. What does this mean? While it may all sound very much like science fiction, as of 2015, the most common information conveyed by genetic testing are markers that indicate a susceptibility for certain hereditary diseases. This means that some individuals may be more likely to acquire a chronic illness in the future than others, even if that person is not sick at present.

It might be that employers who are privy to such information may decide to terminate the employment of an individual because that person may take more sick leave in the future or require more expensive treatments that could have an effect on the cost of the employer's benefits, such as health insurance. The purpose of GINA is to attempt to foreclose this possibility. It does this both by making discrimination or wrongful termination on the basis of genetic information illegal and by attempting to limit the amount of this information that is available to employers.

The law provides for some exceptions and also protects the confidentiality of information, issues which may be addressed in future blog posts. For now, suffice to say that this is a new and evolving legal concept, with quite a bit of nuance and complexity to it. Given the rate of scientific advancement, in the future, our genes may not only tell the story of our susceptibility to illness, but other traits that may have impact on potential work performance as well. Perhaps GINA will be the first step in ensuring that employees have some protection against a "brave new world" of discrimination.

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