Use of Genetic Testing by Employers and Insurance Companies Genetic Engineering Symposium 3 Dickinson Journal of Environmental Law & Policy 1993-1994

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3 Dick. J. Envtl. L. & Pol'y 105 (1993-1994)
Use of Genetic Testing by Employers and Insurance Companies

handle is hein.journals/pensaenlar3 and id is 351 raw text is: Summer 19941 USE OF GENETC TESTING BY EMPLOYERS AND
INSURANCE COMPANIES
USE OF GENETIC TESTING BY EMPLOYERS AND INSURANCE COMPANIES
Michael Landau*
Mr Landau: Thank you and good afternoon. As my biography mentions, I was a Visiting
Professor of Law teaching courses in intellectual property and also contracts here at
Dickinson last year. The Dickinson School of Law is a special place to me, and it's good to
be back for this Symposium. I now teach at Georgia State University College of Law
down in Atlanta. You can tell by my pronounced southern accent!
I would like to start this afternoon by saying that my fellow panelists are some pretty
tough acts to follow. I thank them for their enlightening comments during their respective
presentations. Now it is time for me to get down to business.
The topic that I will address is listed in the Program as Use of Genetic Testing and
Employment and Insurance. In addition to discussing those areas, I am going to take a bit
of academic liberty, and go a bit broader by briefly discussing a few other issues related to
modern genetic technology, as well, for I view that the areas of genetic engineering, genetic
testing, and patentability of genetic inventions raise questions that relate much broader
than merely to employment and insurance. I will, of course, devote time to employment,
by discussing Title VII of the Civil Rights Act of 1964, Section 1981, the Americans
With Disabilities Act (ADA),4 and insurance. However, as professors often tend to do
- living in the hypothetical what if and contemplative world, instead of only the what
is world - I deliberately want to scratch the surface in some other areas to pique your
curiosity, and give you some additional things about which to think. I hope that all of you
leave here today with both answers, and yet still more questions.
EMPLOYMENT:
First, I would like to discuss genetic testing and employment. In the employment context,
the main concern is actual or potential job discrimination based upon some perceived risk
of the potential employee's inability to do the job based upon some genetic defect. In
traditional employment discrimination analysis, there are usually two doctrines that arise:
(a) disparate treatment and (b) disparate impact.
*Associate Professor of Law, Georgia State University, Atlanta, GA; J.D., 1988, University of Pennsylvania. During the
1992-93 academic year, Prof. Landau was a Visiting Professor at The Dickinson School of Law.
1 Genetic Testing is actually a broad term that includes two types of testing, genetic screening (i.e., testing to determine
the genetic makeup of an individual) and genetic monitoring (i.e., testing to determine whether genetic changes, in response
to exposure to chemicals, carcinogens, or other elements, have occurred). For purposes of this presentation, I am concentrating
on genetic screening, and am using the term genetic testing to mean that.
242 U.S.C. з 2000e-16
'42 U.S.C. з 1981 (1988).
442 U.S.C.A. зз 12101-12213 (West Supp. 1992).
105