Intrusive Employment: Breaching Employee Privacy Rights

Intrusive Employment: Breaching Employee Privacy Rights

Christine Demark worked as a sales representative, and excelled in her position. Excelled that

is, until one day she decided to undergo genetic testing at the University of Michigan. The

conclusion of the tests was that Christine was genetically at risk for Huntington's disease. During

the course of a phone conversation with the University doctors, a coworker overheard her and

relayed the information to Christine's supervisor. As a result, Christine's employer demoted her

to a customer service position, stating that her current job was too stressful, and months later

firing her altogether (Spice, 2000). While this is a sad story, stories such as Christine's are

becoming all too familiar within the business world. Gone are the days of separation between

profession and private life. With the use of genetic testing and electronic communications

monitoring, employees' privacy rights are fast becoming an endangered species.

Intrusive Employment 3

"Genetic tests can provide presymptomatic medical information about an individual,

including information about an individual's increased risk of future disease, disability, or early

death" (Miller, 1998, p. 189). According to surveys from both the U.S. Department of Labor and

the American Management Association, companies using genetic testing for employment

purposes have risen from 1.6% to nearly 10% between 1982 and 1997. While employers and

insurance companies alike will argue that the reasons for these tests are well-founded,

proclaiming such tests a necessary step in fighting increasing health care costs, it does not

provide an answer to why employees are being fired over health issues.

The most dangerous aspect of this rising trend is that, although the Health Insurance

Portability and Accountability Act of 1996 restricts group insurance providers from using genetic

information to discriminate against policy holders, only about half the states in the U.S. have

laws in place to prevent employers from firing their employees-based on those same results

(Epoch Legal Information Services, 2004). "According to a 1996 Georgetown University poll of

332 families with perceived genetic risks: 22% reported they had been refused health insurance,

and 13% had been fired from their jobs based on their perceived genetic risks" (Epoch Legal

Information Services, 2004, Of Genes and Pinkslips: Genetic Testing Goes to Work, ¶ 2).

In addition to rising health care costs, employers practicing genetic testing attempt to justify

their actions by arguing that employees are protected from genetic discrimination by the

Americans with Disabilities Act (ADA); however, The National Workrights Institute states:

There are strong indications that the Americans with Disabilities Act may not provide

meaningful protection against genetic discrimination in employment, nor provide

sufficient safeguards against the use of genetic testing in the workplace. As a result of the

ADA statutory language, recent Supreme Court decisions narrowly construing the ADA

Intrusive Employment 4

definition of "disability" and the lack of deference the Court has shown to EEOC

regulations in this area (in fact, recent decisions by the Supreme Court have caused the

EEOC to revise its interpretive guidelines to Title I of the ADA), there is a substantial risk

that asymptomatic individuals are not protected from genetic discrimination in

employment under the Americans with Disabilities Act. (Genetic discrimination and the

americans with disabilities act: An unlikely fit, ¶ 1)

While the ADA works well for those employees that have disabilities prior to being hired, it

provides no protection for individuals who are genetically at risk to develop a disability in the

future from being fired-based on those genetic findings. Many companies over the years have

decreased the number of sick days available to employees, and those same companies have

stiffened penalties for employees who exceed those days available, but with the introduction of

genetic testing in the workplace, employers are now capable of firing employees before an

illness even surfaces.

While recent developments in genetic testing have changed employees' rights to privacy,

even individuals of perfect health are not safe from the rising trend of privacy violations at work.

Recent developments in technology are also posing a threat to the private lives of employees.

Today, programs for monitoring what an employee does on his or her computer are in

abundance. According to Epoch Legal Information Services, Inc. (2004), "...a recent survey of

more than 700 companies by the Society for Human Resource Management (SHRM) found that

almost three quarters of the companies monitored their workers' use of the Internet and check

employee email..."