Genetic testing is becoming more common. As this scientific field develops, testing methods and options continue to advance and can provide both interesting and important information about ancestry and medical conditions that are genetically linked. Of course, this important information can also be used by some interested parties for improper reasons. Recognizing this, some countries have introduced legislation in this area to protection this genetic data, including by protecting employees from discrimination at work based on gtheir enetic information. The United States and Australia are two examples of countries which have introduced legislation in this vein.
The most obvious scenario where genetic discrimination could come into play would be if an employer refused to hire someone, terminated someone’s employment or otherwise negatively treated an employee or potential empoyee because that person’s genetic profile put them at a greater risk of contracting a genetically related disease.
Jeffrey Graham, one of the authors of a new law firm study of science and the law that includes a look at genetic discrimination, believes it is likely that Canada will also pass federal human rights legislation that will protect workers from discrimination based on the results of genetic testing.
One proposed bill was not passed before the House of Commons was dissolved last year and another is currently under consideration there again, having already passed the Senate.
Currently, neither the Canadian Human Rights Act nor the British Columbia Human Rights Code, both of which provide explicit protection against employment discrimination based on several characteristics such as race, religion, age, sex, disability and more, include the category of genetic information as a protected class. It may be possible to make the legal argument that genetic information is a type of disability under current law in some circumstances, but there is no guaranty that an involved government agency or court will agree with that assertion.
The federal bill currently under consideration would include genetic discrimination within disability discrimination in federally regulated workplaces.
Another employment issue related to genetic information is the extent of the right to privacy surrounding an employee’s genetic information in the hands of an employer. The federal bill currently under consideration would also add genetic information to the kinds of information that receives federal privacy protections in employment.