New Law Protects Employees' Genetic Information

The employment provisions of the Genetic Information Nondiscrimination Act (GINA) will take effect on November 21, 2009. GINA is groundbreaking legislation that addresses employees’ fear that their genetic information will result in adverse employment actions. The law prohibits (1) the use of genetic information in making employment decisions, (2) the acquisition of an employee’s genetic information, and (3) retaliation. GINA also requires that employers keep an employee’s genetic information confidential.

Employees’ have experienced genetic discrimination in the workplace. In fact, Norman-Bloodsaw v. Lawrence Berkeley Laboratory lawsuit was one such case. The lawsuit claimed that Lawrence Berkeley Laboratories violated Title VII and the Americans with Disabilities Act by testing Black job applicants for sickle cell anemia and female job applicants for pregnancy -- testing which was “neither job-related nor consistent with business necessity.” The lawsuit also claimed that the Laboratory violated its employees’ right to privacy by keeping genetic test results in the employee’s personnel files. The Court held that the Laboratory violated Title VII by singling out Black and female job applicants for nonconsensual testing to determine if those applicants would be offered employment at the lab. The Court held that the Laboratory violated the applicant’s privacy in “the non-consensual retrieval of previously unrevealed medical information.” The Court explained that “few subject areas are more personal and more likely to implicate privacy than one’s health or genetic information.” But, the Court held that the Laboratory did not violate the Americans with Disabilities Act, because the ADA does not prohibit genetic testing or the retention of genetic information. The Norman-Bloodsaw case exposed what many already feared, i.e., that genetic discrimination may not be sufficiently covered by the current federal employment discrimination laws.

The issue of genetic discrimination in the workplace became a hot topic again in 2001. The Equal Employment Opportunity Commission filed suit against Burlington Northern Santa Fe for disability discrimination in violation of the Americans with Disabilities Act. Burlington Northern was secretly testing its employees to see if the repetitive stress injuries employees were experiencing were due to a rare genetic condition or to their working conditions. Burlington Northern employees knew that they were participating in a health screening, but they did not know that they were also being genetically tested. And, employees who refused the health screens were threatened with termination. The lawsuit settled for $2.2 million. Since the case was not tried, we do not know if the EEOC would have been successful in its attempt to use a disability discrimination theory to attack the use of genetic testing in making employment decisions.

In July of 2004, the National Partnership issued a report titled Faces of Genetic Discrimination: How Genetic Discrimination Affects Real People. The report found that a majority of Americans were concerned about genetic discrimination and did not want employers to have their genetic information. As a result, employees were shielding their genetic information leading to incomplete medical histories and preventing health providers from offering the best diagnosis, treatment and preventative medicine possible. The National Partnership was not optimistic that the Americans with Disabilities Act covered genetic discrimination. So, the National Partnership challenged Congress to address the problem by stating, “Lawmakers have a critical decision to make. Without strong, meaningful federal protections, genetic discrimination will continue to be a serious problem that has a real cost for Americans – and there will be many more faces of genetic discrimination in the months and years ahead. The well-being of our nation is at stake.”

Congress accepted the National Partnership’s challenge. But, there was a strong lobby against a genetic discrimination bill from the U.S. Chamber of Commerce and other business interests who claimed that making genetic discrimination illegal would result in increased lawsuits against employers. The health insurance industry also fought hard against a genetic discrimination bill because it wanted to continue its use of genetic information in determining coverage and setting premiums. After years of being stalled in Congress, the Genetic Information Nondiscrimination Act was passed by Congress and signed by President Bush in May of 2008. Senator Ted Kennedy called the Genetic Information Nondiscrimination Act “the first major new civil rights bill of the new century.”

GINA’s passage will hopefully make employees less reluctant to participate in genetic and genomic research. With additional research into the genetic aspects of health and disease, scientists may be able to develop more personalized screening, diagnosis and treatment for patients.

Sick Leave vs. the H1N1 Virus: Can You Afford to Stay Home Sick

The H1N1 virus is in 48 of the 50 states and has already infected as many as 5.7 million Americans. To stop this epidemic, the Center for Disease Control has advised employees to stay home until 24 hours after their flu-like symptoms disappear. But, times are tough. The country’s unemployment rate is at a staggering 10.2%. Approximately a half million employees are added to the unemployment rolls every month. It is extremely difficult to get back into the workforce once employees lose their jobs. Is it realistic to think that employees will risk their jobs in this difficult economy to stay home and get well?

The National Labor Committee (a workers advocacy group) strongly criticized Wal-Mart a couple weeks ago, claiming that Wal-Mart’s sick leave policy makes it difficult for its employees to stay home when they are sick. Wal-Mart’s sick leave policy states that employees will not be paid for the first day they call in sick unless the employee uses a personal day or a vacation day. The sick leave policy also assigns points to employees who miss work because of illness and provides for termination if an employee is absent because of illness more than four times in a six month period. Some Wal-Mart employees commented that they went to work when they were sick because they feared what would happen if they missed work. Wal-Mart’s response was that it encourages its employees to stay home if they or their children are sick.

Wal-Mart also issued a memorandum to its human resources employees stating “We need to be clear that no one will lose their jobs if they get H1N1.” That memorandum is a start, but it does not solve the problem. The problem is employees are afraid or cannot afford to stay home if they get sick. Wal-Mart’s memorandum does not remedy the fact that employees feel pressure to come to work sick because they are not paid for their first sick day. And, Wal-Mart’s memorandum does not remedy the fact that employees feel pressure to come to work sick because they do not want to accumulate negative points under Wal-Mart’s sick leave policy.

While the media and bloggers are criticizing Wal-Mart’s sick leave policy, we must not forget that inadequate or problematic sick leave is not limited to Wal-Mart. The Department of Labor estimates that 51 million workers do not have access to paid sick leave. In a Public Welfare Foundation survey conducted last year, one in six workers said that they or a family member has been terminated, suspended, punished, or threatened for staying home sick or caring for a sick relative. Inadequate sick leave is a huge problem that extends beyond the world’s largest retailer and beyond any particular industry.

Worker’s groups and women’s groups have begun pressuring Congress to enact legislation guaranteeing paid sick days. Last week, Congress introduced the “Emergency Influenza Containment Act” to “ensure that American workers are able to follow, without financial harm, the recommendations of their employer and public health authorities to stay home when they have symptoms of a contagious disease that may put coworkers, customers, or the public at risk.” The Act would do the following if it becomes law:

• Employers with 15 or more employees must provide a maximum of five days of paid sick leave over a twelve month period.

• The Act covers full time employees and part time employees.

• The Act only covers employees who are sent home or advised to stay home by their employers. The Act does not cover employees who decide on their own to stay home.

• Employers can end the sick leave if they believe the employee is well enough to return to work.

• Employees can continue on unpaid leave under the Family Medical Leave Act or other existing sick leave policy when they exhaust their sick leave under the Act.

• The Act prohibits employees from being terminated, disciplined, or retaliated against because they followed their employer’s direction to stay home because of a contagious illness.

• The Act would take effect 15 days after being signed into law.

There are experts who say that the Emergency Influenza Containment Act does not solve the problem. The Act only covers employees who are sent home or instructed to stay home by their employers. Consequently, an employee may go to work sick (thereby exposing his or her coworkers to contagious disease) to attempt to get coverage under the Act which would defeat the Act’s purpose. The Act also does not consider that employers may not send their employees home or instruct their employees to stay home which means those employees would not be covered by the Act. There does not seem to be an easy solution. But, should employees have to choose between their health (and that of their coworkers and the public) and their jobs?

Is Unconscious Bias Negatively Affecting Your Workplace?

Thirty percent of Caucasians admit that they have a racial bias toward African-Americans. But, are those numbers accurate? Social scientists studying “unconscious bias” say that number is low. In fact, some studies have found that 88 percent of Caucasians have a pro-Caucasian or anti-African American unconscious bias.

Unconscious bias is the concept that individuals can have a bias at an unconscious level that influences decision-making in ways that the individual is unaware. In other words, individuals who have an unconscious bias make decisions based on stereotypes with no idea that they and their decisions are biased. Social scientists have empirically demonstrated that unconscious bias exists in our society. In fact, the bias begins as early as age three when we are taught to categorize the world around us. Categorization allows us to make sense of new information, but it also leads to stereotyping. That stereotyping results in discrimination when people rely on those preconceived notions in making employment decisions.

Marianne Bertand (Chicago Graduate School of Business professor) and Sendhil Mullainathan (MIT professor) conducted an experiment to determine if employers were discriminating against job applicants with African-American sounding names. Bertrand and Mullainathan sent out nearly 5,000 resumes to 1,300 job openings in Chicago and Boston. Every employer received four resumes: an average Caucasian applicant, an average African-American applicant, a highly skilled Caucasian applicant, and a highly skilled African-American applicant. The companies to which the resumes were sent stated that they were aggressively seeking diversity. Yet, the study found that applicants with Caucasian sounding names were 50 percent more likely to get an interview than applicants with African-American sounding names. They also found that lower skilled Caucasian applicants received more interviews then highly skilled African-American applicants. The study revealed that employers have an unconscious bias when they see an African-American sounding name which causes them to react negatively toward that applicant’s resume.

The most well known unconscious bias study is “Project Implicit.” Psychologists at Harvard, the University of Virginia, and the University of Washington developed Implicit Association Tests (“IAT”) to uncover an individual’s hidden stereotypes. The test requires subjects to rapidly classify words and images as good or bad while sorting images that are (depending on the bias in the question) African-American or Caucasian. Unconscious bias is exposed by how long it takes the subject to pair the words and images. Subjects who have an unconscious bias towards African-Americans will take longer to associate African-American images with good or positive words. Millions of people have taken the IAT. The IAT has found that there is widespread unconscious bias against African-American, even among individuals who believe that they have no racial bias.

The IAT has ignited a vigorous debate. And, the test has many critics. Richard Banks (Stanford Law Professor) criticizes the IAT claiming that “it is not clear that researchers have uncovered any evidence of unconscious racial bias that influences what happens in the world. The IAT may not measure real world unconscious racial bias at all. It may just measure awareness of cultural associations out in the world.” William von Hippel (University of South Wales) says that “we still do not really understand what [the IAT] reveals.” Banks’ and von Hippel’s criticisms of the IAT are consistent with those of other unconscious bias critics who argue that unconscious bias findings reveal nothing about how an individual will act. Critics say that people can consciously override their biases, but the research finds that implicit biases are a powerful predictor of how individuals actually behave. As Andy Poehlman (a Yale graduate student who has tracked more than 61 studies) explained, an unconscious bias “doesn’t control our behavior in a be-all and end-all kind of way, but it flavors our behavior in a pretty consistent way.”

Unconscious bias is increasingly being used in employment litigation to prove discrimination. Unconscious bias has been a central issue in Dukes v. Wal-Mart Stores, Inc., the largest class action discrimination lawsuit in history in which two million women are suing Wal-Mart for gender discrimination. The Court’s receptivity to unconscious bias arguments in the Home Depot class action and the FedEx class action resulted in those cases settling for huge amounts, $87.5 million and $53.5 million respectively. Unconscious bias is being raised in class actions against several other Fortune 500 companies such as Best Buy, Johnson & Johnson, Cargill, Merrill Lynch, General Electric, American Express, MetLife, and Morgan Stanley.

Employers also are addressing unconscious bias allegations in their dealings with the EEOC, the governmental agency that enforces the federal employment discrimination laws. The EEOC explains that intentional discrimination “includes not only racial animosity, but also conscious and unconscious stereotypes about the abilities, traits, or performance of individuals of certain racial groups.” The EEOC clearly warns employers to be attuned to the subtle and unconscious ways that race and color stereotypes and bias can negatively affect all aspects of an individual’s employment. The EEOC is focusing its enforcement efforts on eradicating unconscious bias. The agency even filed suit against Walgreens alleging that unconscious bias was influencing employment decisions at the drugstore chain.

There is considerable debate about whether and to what extent unconscious bias affects employment decisions. To date, employers appear to be handling the issue by claiming that unconscious bias does not exist. Perhaps, employers should learn from Wal-Mart, Home Depot, FedEx, and Walgreens (i.e., companies who failed in their arguments that unconscious bias does not exist) and instead, audit their processes to ensure that unconscious bias is not at work in their companies.