Do Your Genes Fit?
What are employers to do?

Mr. Clegg is general counsel of the Center for Equal Opportunity
February 14, 2001 1:00 p.m.

he U.S. Equal Employment Opportunity Commission, still waiting for some Bush appointees, recently accused Burlington Northern Santa Fe Railroad of violating the rights of its workers by testing their blood for evidence of genetic predisposition to certain injuries from carpal-tunnel syndrome. The EEOC's suit says the testing violated the Americans with Disabilities Act.

The company has denied many of the allegations, but let's suppose for the sake of argument that what the EEOC says is basically true. Is there anything illegal or immoral about what the company is accused of doing?

The claim that the Americans with Disabilities Act was violated is weak (the EEOC also says that employees' privacy rights were violated, but the facts regarding this are in dispute). The ADA defines "disability" as "a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual." That is a broad definition, all right, but it is written in the present tense. Accordingly, it is hard to argue that a genetic predisposition to develop a disability is the same thing as a disability.

That is also the best reading of the Supreme Court's interpretation of the statute in its 1998 Bragdon v. Abbott decision. In holding HIV-positivity to be covered by the ADA, a 5-4 Court thoroughly described the course of the disease and concluded: "In light of the immediacy with which the virus begins to damage the infected person's white blood cells and the severity of the disease, we hold it is an impairment from the moment of infection." This immediate damage to the body distinguishes it from genetic predispositions.

Chief Justice Rehnquist's dissent (in which he was joined by two other justices) in the case was consistent with the majority opinion on this point, and more explicit. It said: "The ADA's definition of disability is met only if the alleged impairment substantially 'limits' (present tense) a major life activity" — the parenthetical is Rehnquist's. He goes on to reject any argument to the contrary precisely because, "taken to its logical extreme, [it] would render every individual with a genetic marker for some debilitating disease 'disabled' here and now because of some possible future effects."

Indeed, up until the EEOC's lawsuit, even sympathetic experts thought that federal regulations and guidance were inconsistent with the position it is now taking.

But of course Congress has authority to change the law. Should it? That is, is what Burlington Northern is accused of doing wrong?

Privacy issues aside, it is hard to fault the company for wanting to know whether certain lines of work might be bad for an employee's health. Indeed, one can imagine the anticorporate attacks if the company failed to test: "Ralph Nader, Mother Jones magazine, and 60 Minutes all accused Burlington Northern today of callously refusing to undertake the simple precautions necessary to ensure that employees are not given work that can kill or cripple them," etc.

So the issue must be, What do we want employers to do when they find out that an employee's genetic predispositions make it hazardous for him to continue at a particular job?

There are basically three possibilities: (1) fire him, (2) assign him to another position, or (3) tell the employee and let him decide himself. Let's consider them in turn.

There is an understandable and strong impulse to resist firing people for things that are not their fault and are beyond their control. On the other hand, we do it all the time. If an employee turns out to be incompetent, we accept the fact that the employer may fire him, even if the employee is doing his best. Except for some government jobs, dropping dead is a serious impairment to performance. And it can be expensive to train employees who unexpectedly must be replaced on short notice. Finally, genetic testing may be able to tell us not only about an employee's disabilities, but his abilities as well.

Assigning the employee to another position is certainly the most humane and satisfying resolution, and one that most employers would likely adopt voluntarily, assuming they were otherwise happy with the employee and there was another position available. But suppose there isn't another job for which the employee is the best qualified person. Creating an entitlement to that job is unfair not only to the employer but to the employee who is the best qualified.

There can also be a couple of problems with telling a company that it must let the employee continue in a hazardous position if that's what he chooses. It may increase the company's liability down the line — not only to the employee, but to other employees if they are somehow injured as a result. And some employers may be understandably and humanely reluctant to place employees in harm's way.

The truth of the matter is that sometimes the first course makes sense, and other times the second course does, and in yet other instances the third is the most logical. Under these circumstances, especially when what is involved is a rapidly changing area of science and technology, it makes little sense for the federal government to mandate a one-size-fits-all approach for all situations.

Yet, predictably, that is where we are headed. House and Senate bills are being introduced this week, sponsored by Sen. Tom Daschle (D., SD) and others. Yet it seems very unlikely that the EEOC, the courts, or Congress will be better able to reach a reasonable resolution of the issues raised by genetic testing than by allowing the private sector to grapple with them.