Can an Employer Rescind a Job Offer Because of a Genetic Test?

By Eric B. Meyer

A received a number of emails following my blog post, “Can you refuse to hire a person whom you fear may have a future disability?

One of the more substantive emails was worthy of setting the table for today’s post:

There’s an employer in my area that requires every employee to undergo genetic testing as part of their orientation process. What happens if an employee shows up with the BRCA gene for breast cancer? Can the employer rescind the offer because this medical test indicates that the employee has a greater likelihood of breast cancer? Or is there enough wiggle room in the decision that a gene would not be considered a physical characteristic?”

So, under the Americans With Disabilities Act, you can refuse to hire a person whom you fear may have a future disability.

No ADA issues, but maybe some GINA problems

I’m assuming that this question is not one of those “asking for a friend” questions that I so often receive at the end of presentation I make at local HR events. Rather, I’m going to respond to what I envision is a purely hypothetical, not-asking-for-legal-advice-and-I’m-not-giving-it, questions.

So, a quick recap of my last post. The St. Louis-based Eighth U.S. Circuit Court of Appeals held in Morriss v. BNSF Railway Corporation that it’s OK under the ADA to make an employment decision based on a perception that a physical characteristic — as opposed to a physical impairment — may eventually lead to a “disability.”

But, you may have some GINA problems.

For today’s question, there’s another federal anti-discrimination statute to consider: GINA.

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“The law forbids discrimination …”

I’m talking about the Genetic Information Non-Discrimination Act (GINA). And, under GINA, the answer to the reader question is more black and white. Ain’t that right EEOC?

The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. An employer may never use genetic information to make an employment decision because genetic information is not relevant to an individual’s current ability to work.”

In the question above, can the employer rescind the job offer because the medical test indicates that the employee has a greater likelihood of breast cancer?

Nope. That would violate GINA (and any comparable state or local law).

Hypothetically speaking, of course.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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