Last week, California’s Governor Jerry Brown passed SB 559, which amends the Unruh Civil Rights Act and the Fair Employment and Housing Act to include “genetic Information” as an impermissible basis of discrimination.
“Genetic information” is defined by the law as any of the following information regarding an individual:
(i) The individual’s genetic tests.
(ii) The genetic tests of family members of the individual.
(iii) The manifestation of a disease or disorder in family members of the individual.
(iv) any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual.
However, an individual’s age or sex is not considered “genetic information.” But we already know that you can’t discriminate on the basis of age or sex.
Some of us may ask, who goes around asking employees for their “genetic information” any way? SB 559’s declarations noted that this form of discrimination was evident in the 1970s, which saw the advent of programs to screen and identify carriers of sickle cell anemia, a disease that afflicts African Americans. This led state legislatures to enact discriminatory laws in the area, and in the early 1970s began mandating genetic screening of all African Americans for sickle cell anemia, leading to discrimination and unnecessary fear.
Yes, it does happen. In 1998, the 9th Circuit Court of Appeals decided in favor of employees of Lawrence Berkeley Laboratory, which screened for syphilis, sickle cell trait, and pregnancy as part of their pre-employment health exam. Norman-Bloodsaw v. Lawrence Berkeley Laboratory.
PRACTICAL TIP: Employers subject to the Unruh Civil Rights Act and the Fair Employment and Housing Act should now treat genetic information as protected from discrimination the same way the same way that sex, race, color, religion, ancestry, national origin, and disability. Unlike sex, race, or disability, which are usually apparent, an employee’s genetic information is not, unless you ask for it. Don’t even give yourself access to the information. If you need it, apply the tests universally and use that information for legitimate business purposes in a non-discriminatory manner.
Employees, if your employers require health screenings and you suffered an adverse employment action because of your genetic information, you may now have a basis for a discrimination lawsuit.
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