Charles S. Plumb and Sam R. Fulkerson, Editors
McAfee & Taft

Vol. 16, No. 7
July 2008

DISCRIMINATION

GINA: You've come a long way, baby!

You've probably heard about all of Congress' recent wrangling over the Genetic Information Nondiscrimination Act (fondly referred to as GINA). Yet you probably don't know the story of GINA's historical connection to our own state and the quest for the answer to the age-old debate over nature versus nurture. This article provides a bit of history about our fascination with what makes us tick as well as a current description of what GINA's recent arrival means to you.

In the beginning

Think back to a different time (granted, you may not be old enough to actually recollect any of this, but go with me anyway). It was just after the Depression ― the real one back in the late 1920s. Oklahoma had a law that limited the rights of certain individuals to have offspring. Yes, it's true. The Habitual Criminal Sterilization Act allowed the state to have certain habitual criminals ― and I quote ― "rendered sexually sterile without detriment to [their] general health."

Well, as the story goes, a man named Skinner was convicted in 1926 of stealing chickens and did time for his crime. Then, in 1929, he was convicted of robbery with firearms and did time. In 1934, he was again convicted of robbery with firearms and again did time. It was during that last incarceration that the Oklahoma Legislature passed its Habitual Criminal Sterilization Act.

So, in 1936, the state sought to have Skinner sterilized. At his trial (where, strangely, he tried to avoid forced sterilization), the court instructed the jurors that the only question they were to decide was whether Skinner could, in fact, be sterilized "without detriment to his general health." The jury found that indeed he could.

As you might or might not imagine, Skinner was displeased with that result. Appeals followed (I'm skipping to the end to avoid boring you with too many procedural details). Ultimately, the U.S. Supreme Court determined that the law was unconstitutional because it didn't apply fairly and equitably to the crimes listed therein. In other words, the Court found a problem with the proposition that three convictions of one type of crime warrant sterilization when three convictions of another don't. The Court wrote, "A person who enters a chicken coop and steals chickens commits a felony; and he may be sterilized if he is thrice convicted. If, however, he is a bailee of property and fraudulently [keeps the property], he is an embezzler. [But] no matter how habitual his proclivities for embezzlement are and no matter how often his conviction, he may not be sterilized."

In going out on that limb and declaring the law unfair, the Court noted that society has "not the slightest basis for inferring that that line [between stealing chickens and embezzling] has any significance in eugenics, nor that the inheritability of criminal traits follows the neat legal distinctions which the law has marked between those two offenses." (According to the oft-quoted Wikipedia and to save you the time of googling it yourself, "Eugenics is a social philosophy which advocates the improvement of human hereditary traits through various forms of intervention.")

Really smart people develop genetic testing, and things get out of control

I've no idea when or how genetic testing was developed, but it clearly happened because I've seen the detectives on Law & Order use it many times to solve crimes. So now we have genetic testing, and everyone is debating how it will be used.

Employers began receiving genetic information on employees through a myriad of sources, sometimes directly and sometimes inadvertently (e.g., through voluntary health screenings, medical exams that occurred before the passage of the Americans with Disabilities Act (ADA), and the like). Employee and privacy advocates got involved, of course, spurring several states to pass legislation governing the use of such information. You know the mantra ― use the power of genetic testing for good, not evil.

Oklahoma jumps on the genetic bandwagon

In 1998, Oklahoma enacted the Genetic Nondiscrimination in Employment Act (which doesn't lend itself to the cute and easy-to-remember acronym that Congress so thoughtfully used when it gave birth to GINA). Our state law provides that no employer shall seek to obtain, use, or require a genetic test of or genetic information about an employee or prospective employee "for purposes of distinguishing between or discriminating against" him (except in connection with determining insurance coverage or benefits).

Although there are currently no reported court cases under the state law, watch for them in the future with all the press GINA is getting.

GINA is conceived

OK, not in the way you're thinking. Representative Louise Slaughter (D-New York) first introduced the legislation in 1995 and championed it through to passage. The bill passed the House 414-1 on May 1, 2008, a week after the Senate passed it 95-0. No, that's no typo. It took approximately 10 years to make this happen. It got close in 2003, 2004, and 2007, but roadblocks preventing pas-sage of the law weren't removed until this spring.

To bring it back home, one of the primary roadblocks was Oklahoma's own Senator Tom Coburn, who tried to get a "business necessity" exemption for employers seeking to collect genetic information from workers. Senator Coburn finally agreed to a compromise when a "firewall" separating the employer and insurance provisions was negotiated.

GINA prohibits discrimination by employers, employment agencies, and labor unions on the basis of genetic tests. Specifically, you may not fire, refuse to hire, or otherwise discriminate with respect to compensation, terms, conditions, or privileges of employment because of genetic information.

The employment provisions are expected to take effect in November 2009, with provisions affecting group health plans taking effect in May 2009. Employers, employment agencies, and unions that have genetic information on employees will be required to keep it in separate files and treat it like confidential medical records.

GINA: good girl or offspring of pure evil?

Of course, determining whether something is good or evil is never as clear as we would hope. GINA's merits have been debated and negotiated for more than a decade. Advocates say the new law means that more people will feel free to take advantage of genetic testing to predict their risk of contracting diseases in time to take preventive action.

But opponents of GINA argue that the law will expose employers to civil rights lawsuits stemming from disputes over medical coverage. Plus, they argue that GINA's confidentiality rules place even more recordkeeping requirements on employers.

The Genetic Information Nondiscrimination in Employment Coalition (GINE) was among the groups voicing concern over the bill's provisions, at least some of which were resolved during negotiations. In April 2007, the group sent a letter to House Speaker Nancy Pelosi and Republican leader John A. Boehner voicing support for the spirit of the law and opposition to some details.

The group claimed the bill's method of regulating genetic information and testing was inconsistent with requirements for regulating health information under the ADA. The group also said the bill would expose employers to substantial compensatory damages for paperwork mistakes and would force them to work under constraints of a federal law without giving them relief from a patchwork of possibly conflicting state standards.

GINE praised lawmakers for striking a provision that would have required employers to offer health plans covering all treatments for genetic-related conditions and for amending the bill to unify the rules for handling genetic and health care information.

The U.S. Chamber of Commerce voiced opposition in a letter to House members in March of this year citing concern that GINA would "invite frivolous litigation" and that its medical privacy provisions would "alter employer use and processing of health care information."

Opponents of GINA claimed genetic discrimination isn't a problem, citing a lack of lawsuits filed under various state bills. The bill, however, contained congressional findings citing examples of genetic discrimination in the workplace, including the use of preemployment genetic screening at Lawrence Berkeley Laboratory in California that led to a court decision in favor of employees (Norman-Bloodsaw v. Lawrence Berkeley Laboratory).

From Mr. Skinner to GINA

From the debate over whether stealing chickens should lead to forced sterilization to curtail the birth of criminals to a simple blood test that may (or may not) show a propensity for certain behaviors or medical conditions, the answers to questions like "What makes us tick?" and "What do we do with that information?" remain a mystery. While this author can't solve that mystery, I can warn you that you're going to be governed by laws prohibiting discrimination based on genetic information. So, CSI junkies, beware.

You may contact the author at kbrightmire@dsda.com.

You can research genetic testing or any other employment law topic in the subscribers' area of www.HRhero.com, the website for Oklahoma Employment Law Letter. Access to this online library is included in your newsletter subscription at no additional charge.

Copyright 2008 M. Lee Smith Publishers LLC

OKLAHOMA EMPLOYMENT LAW LETTER does not attempt to offer solutions to any individual problems or to provide legal advice to its readers. Rather, the OKLAHOMA EMPLOYMENT LAW LETTER seeks to provide information about current developments in Oklahoma employment law. Questions about individual problems or requests for legal advice should be addressed to an employment law attorney of your choice.