GENETIC TESTING: Court Restricts Use By Employers
A federal appeals court ruled yesterday that employers may not secretly test employees' blood for pregnancy, sexual diseases or for genetic conditions not related to job performance. The case involved Lawrence Berkeley Laboratory's secret testing of newly hired clerical workers for sickle-cell anemia, pregnancy and syphilis, the AP/Bakersfield Californian reports. "One can think of few subject areas more personal and more likely to implicate privacy interests than that of one's health or genetic makeup," said Judge Stephen Reinhardt of the 9th U.S. Circuit Court of Appeals in his decision. He stated that "testing blacks for the sickle-cell gene and women for pregnancy also would discriminate against them on the basis of race or sex" (2/4). According to the Sacramento Bee, the ruling "extended constitutional privacy concepts to genetic information for the first time." Vicki Laden, the lead attorney for the plaintiffs, said the decision "appeared to apply to all employees in California, both public and private, and to all government employees in the circuit's nine-state Western region" (Cooper, 2/4).
The decision "revived a suit" challenging the laboratory's practice, which "has now been suspended." The seven employees filing suit are seeking the destruction of their test records and a ban on future testing, as well as damages. They claimed not to have been aware of the tests during employee health examinations, or to have seen signs on laboratory walls indicating that testing would take place (AP/Bakersfield Californian, 2/4). Lawrence Berkeley Laboratory had "claimed that it provided fair warning of the three tests by posting signs" (Sacramento Bee, 2/4). However, the court ruled that gathering medical or genetic information without consent is a violation of privacy despite the fact there was no evidence that these test results were disclosed or used against any employee. "This is the first time that there has been a decision that makes it clear that an employer can't test employees for medical conditions without their knowledge or consent, and further that an employer has to have a sufficient job-connected reason for conducting medical exams," said Laden. The laboratory's lawyer, Douglas Barton, did not comment on the decision (AP/Bakersfield Californian, 2/4).