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Genetic discrimination occurs when people treat others (or are treated) differently because they have or are perceived to have a gene mutation(s) that causes or increases the risk of an inherited disorder. It may also refer to any and all discrimination based on the genotype of a person rather than their individual merits.
Some legal scholars have argued for a more precise and broader definition of genetic discrimination: "Genetic discrimination should be defined as when an individual is subjected to negative treatment, not as a result of the individual’s physical manifestation of disease or disability, but solely because of the individual’s genetic composition."
Genetic Discrimination is considered to have its foundations in genetic determinism and genetic essentialism, and is based on the concept of genism, i.e. distinctive human characteristics and capacities are determined by genes.
Genetic discrimination is illegal in the U.S. after passage of the Genetic Information Nondiscrimination Act (GINA) on May 21, 2008. It was signed into law by President George W. Bush, and passed in the US Senate by a vote of 49-0 and in the House of Representatives by 414-1. The legislation bars employers from using individuals’ genetic information when making hiring, firing, job placement, or promotion decisions. GINA also protects individuals from genetic discrimination in healthcare, however, GINA itself does not define what genetic information is, leaving it up for debate.
Although it was passed in 2008 there were 201 cases that cited GINA in 2010 and 333 in 2014. It wasn’t until 2013 that a company actually faced penalties under GINA.
In 2008, The New York Times reported that some individuals avoid genetic testing out of fear that it will would impede their ability to purchase insurance or find a job. They also reported that evidence of actual discrimination was rare. In November 2016 insurance company GWG Life was found to be collecting saliva samples in order to offer lower rates to people who are epigenetically healthier than others of their age. While this is positive discrimination, this does suggest future potential classification of clients by genetic data.
While the 2008 GINA Act does protect against genetic discrimination pertaining to health insurance, it does not protect against genetic discrimination under other forms of insurance, such as life, disability or long-term care insurance. Additionally, 2008 Gina offers no protection for home/mortgage insurance or when an employer has 15 or less employees. Excluded from the Act are also parties who are covered under Veterans Health Administration or Indian Health Services. Because a variety of medical tests serve as proxies for genetic information, proponents of insurer access to genetic information argue that it does not require specific limiting legislation.
Direct-to-consumer genetic testing was first offered in 1997 by GeneTree, a now defunct family history website. These tests are easily accessible on the market and popularized by companies such as 23andMe and Ancestry.com. These genetic kits are expensive and disproportionately serve wealthy individuals. As a result, when the data collected from testing is sold to research companies, it represents a biased sample of the population. The Food and Drug Administration additionally halted all 23andMe marketing in 2013 over unsubstantiated claims 23andMe made regarding disease diagnosis and prevention. The firm was allowed to continue sales after it stopped providing health information to customers.
On May 4, 2017, Bill S-201, the Genetic Non-Discrimination Act, received Royal Assent and became law in Canada. Despite government opposition in the House of Commons, it survived the lower house by the support of backbench Liberals and the totality of the Conservative, NDP and Green Party MPs. The Genetic Non-Discrimination Act makes it a crime for anyone to require an individual to undergo genetic testing as a condition for the provision of goods or services, or as a condition for entering or continuing a contract. The Act also forbids anyone from refusing to enter into a goods or services agreement with another person on the grounds that that person has refused to disclose the results of an already completed genetic test. One who contravenes these prohibitions is liable to being fined (up to $1 million) and/or imprisoned (up to 5 years).
Accordingly, one effect of this legislation will be to prohibit insurance providers from demanding that a prospective client undergo a genetic test - or to disclose an existing test - as a prerequisite to the provision of insurance coverage.
The Equality Act of 2010 prohibits the use of genetic information for employment decisions such as hiring and promotions. While no formal law exists banning the use of genetic information for insurance policy decisions, the Government of the United Kingdom and the Association of British Insurers voluntarily entered a moratorium from 2014 to 2019 to refrain from using genetic information with regards to insurance.
Some people have genes that make them more susceptible to developing a disease as a result of an occupational exposure. For example, workers with beryllium sensitivity and chronic beryllium disease are more likely to carry the gene HLA-DPB1 than workers without these conditions. By offering optional genetic testing to workers and allowing only the workers to see their own results, employers could protect genetically susceptible individuals from certain occupational diseases. A beryllium manufacturing company initiated a pilot program to test prospective workers for the HLA-DPB1 gene at a university-based laboratory. The company paid for the testing and counseling but received results that did not identify which workers had the gene.
In 1991, the American Medical Association Council on Ethical and Judicial Affairs suggested that the following five conditions must be satisfied in order for genetic screening by an employer to be appropriate:
Several occupational health screening measures similar to genetic testing are already taking place. For example, in 1978, DuPont reported testing African American applicants for sickle cell trait and restricted these workers from exposure to nitro and amino compounds. However, research indicates that workers or applicants would not take advantage of genetic testing due to fear of discrimination. A 1995 poll of the general public found that over 85% are concerned about access to use of genetic information by insurers and employers. Likewise, in the case of the beryllium manufacturer described above, so few workers participated in the genetic testing that the company decided instead to pursue an “enhanced preventive model of workplace controls.”
Within the world of gender, women of childbearing age are less likely to be hired because employers want to avoid physiological abnormalities or any other damage to the possible fetus in utero. Individuals with a selected trait are discriminated against for certain activities, such as with sickle cell anemia, as there has to be special care taken due a high risk of dehydration and heat related injury, which could lead to exhaustion, painful episodes, and hip joint problems. This has lead to the belief that some races are superior to others, and Eugenics must take place to prevent the race suicide of the “more fit” races, leading to practices like immigration caps and minimum wage, despite the fact that Eugenics has been proven to decrease the amount of genetic diversity, making it harder for a population to cope with future changes in the environment.
Genoism is a neologism coined by Andrew Niccol, director and writer of the 1997 film Gattaca, used to describe unethical and illegal genetic discrimination. Predictions of physical and mental performance are computed via genetics from DNA collected from hair, fingernails, skin flakes, spit swabs, eyelashes, etc. Upon birth, a number of genetically-induced characteristics are calculated: physical and intellectual capacity, life expectancy, probable successful diseases, and likely causes of death, all determined via blood samples and genetic testing. Job interviews, health insurance purchasing, and even potential dates can be sized up according to the perceived quality of the person's DNA due to advancements in genome sequencing. This put an ironic twist to Darwin's sexual selection for good genes. According to the movie, "We now have discrimination down to a science."
My father was right. It didn't matter how much I lied on my resume. My real resume was in my cells. Why should anybody invest all that money to train me when there were a thousand other applicants with a far cleaner profile? Of course, it's illegal to discriminate, 'genoism' it's called. But no one takes the law seriously. If you refuse to disclose, they can always take a sample from a door handle or a handshake, even the saliva on your application form. If in doubt, a legal drug test can just as easily become an illegal peek at your future in the company.