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Witnesses, Republicans Condemn Genetic Discrimination in the Workplace, Urge Close Examination of Federal Efforts to Restrict It

WASHINGTON, D.C. – Witnesses and Republican Members of the U.S. House Subcommittee on Health, Employment, Labor, and Pensions today condemned the discrimination of workers based on their genetic makeup, while urging the careful consideration of federal legislation aimed to safeguard against genetic discrimination in employment and health insurance decisions.

To date, a 2001 Equal Employment Opportunity Commission (EEOC) case involving the genetic testing of employees of the Burlington Northern Santa Fe Railroad is the only documented case of alleged discrimination by a private sector employer on which Congress has details.  Burlington Northern agreed to pay the employees $2.2 million in the settlement of the case, underscoring questions about the need for federal legislative action on this issue, particularly with more than thirty states already having enacted laws to restrict the use of genetic information for health insurance and employment purposes.

“The idea that an employee might face adverse job consequences or risk their health insurance status because of the possibility that they might someday develop an illness is simply unacceptable,” said Rep. John Kline (R-MN), the Subcommittee’s Ranking Republican Member.  “However, before we consider broad reform to our health insurance and employment laws, we need to determine whether there is a real problem here, and if so, which way is best to solve it.”

Kline continued, “It bears noting that in the only recorded claim of genetic discrimination brought by the EEOC of which I am aware, the matter was settled quickly and efficiently.  But that was five years ago, and since that time, to my knowledge, there has been no surge of lawsuits claiming that genetic discrimination by employers or insurers is a growing problem.  Indeed, to the extent there was a concern with the actions of a single employer, some would say the system worked exactly the way it should have – under existing law.”

At today’s hearing, Education and Labor Committee Member, Rep. Judy Biggert (R-IL), testified on genetic non-discrimination legislation she recently introduced in the House.  The Genetic Information Nondiscrimination Act (H.R. 493) is expected to be considered by the Committee in the coming weeks.

“Genetic nondiscrimination isn’t like race, age, or sex discrimination; it’s not apparent,” noted Biggert.  “You can’t tell someone’s genetic makeup from just looking at him or her - you have to dig, and you have to dig deep.  In order for an employer to be liable under this act, he or she would have to intentionally and deliberately go looking for genetic information and then use it against an employee.  An employer literally would have to go out of his way to discriminate and that would be a problem.”

Burton Fishman, former Deputy Solicitor for National Operations at the U.S. Department of Labor and currently a Counsel to the Genetic Information Nondiscrimination in Employment Coalition, explained to the panel the need for balance in any genetic non-discrimination legislation advanced by Congress.

“Any federal legislation prohibiting genetic discrimination in employment should focus on controlling discriminatory conduct, not the flow of information, should conform to other federal employment discrimination laws, should create a single federal standard, should avoid duplicative administrative burdens, and should not impede the beneficent results of the remarkable research now taking place,” Fishman told the panel.  “Such legislation should not be so broadly constructed as to encourage frivolous litigation.”

The fear of excessive and frivolous legislation – already a well-documented burden on health care and legal systems – also was highlighted by Kline, who again stressed the importance of carefully considering the potential consequences of any federal legislative action on this issue.

“To go after a mosquito with a machine gun may not be the best way to solve the problem – and almost surely will create others, some of which, I guarantee as sure as we are sitting here, none of us have yet thought of,” concluded Kline.  “As we approach this issue, I hope we are mindful that the Committee process is intended to provide a forum for a close examination of a bill, with a goal of perfecting a legislative product, and improving whatever bill – if any – ultimately comes before all of us on the floor of the House.”

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	Age discrimination is illegal The Age Discrimination Act of 1975 prohibits discrimination on the basis of age in programs and activities receiving federal financial assistance.