Letter to Sen. Gregg - Concern About a Cause of Action Against Employers Based on Claims of Genetic Discrimination

May 13, 2003

The Honorable Judd Gregg
United States Senate
393 Russell Senate Office Building
Washington, DC 20510

Dear Chairman Gregg:

On behalf of the U.S. Chamber of Commerce, I am writing to express our serious concerns with legislation scheduled to be considered by the Health, Education, Labor, and Pensions Committee that would create a new cause of action against employers based on claims of genetic discrimination.

Our most serious and primary concern is that this legislation is being considered even though there is no evidence that employers are, in fact, engaging in discrimination based on the genetic makeup of their employees. Instead, the purported justification for this legislation is that a fear of possible discrimination may be causing employees to hesitate and not avail themselves of genetic tests. However, federal nondiscrimination legislation has never been based on potential or theoretical discrimination, but, rather, on some appreciable history of actual discrimination. New, sweeping federal legislation covering virtually every workplace in the country based on theoretical discrimination, premised on Congressional predictions of future behavior, is a dangerous precedent, and our concern is heightened by the bill's new cause of action providing for recovery of compensatory and punitive damages as well as jury trials. Indeed, in contrast to the present situation, the Civil Rights Act of 1991 (which added punitive and compensatory damages to title VII of the 1964 Civil Rights Act) was premised on a well-developed record in which, in particular, the inadequacy of current law with regard to actual sexual and racial harassment cases was well demonstrated.

For these reasons, we question the need for the legislation. However, if the Committee chooses to move forward despite the lack of evidence of discrimination, we would urge that the bill be very narrowly tailored and remedies structured to limit unnecessary litigation and the potential for abuse by the trial bar. Administrative enforcement and equitably based remedies (including loss of wages) should be sufficient to allay fear of possible discrimination while mitigating the risk of a dramatic increase in baseless and inherently expensive litigation. The courts are already inundated with employment litigation and certainly do not need an additional workload in defining an entirely new law in an evolving scientific area.

We understand that many important improvements will be made during the Committee's consideration of this bill through a manager's amendment. We are very appreciative of this fact. However, many other serious issues still remain and we hope to continue to work with the Senate to address these issues should this bill progress through the legislative process. A list of those issues is attached.

Thank you for your consideration of these concerns.

Sincerely,
R. Bruce Josten
Executive Vice President, Government Affairs
U.S. Chamber of Commerce
 

Attachment:

Technical Concerns (beyond Remedies) Not Addressed by Manager’s Amendment to Legislation Regarding Genetic Nondiscrimination in Employment

Bona Fide Occupational Qualifications. The ADA, Title VII, and other discrimination laws recognize that there can be rare cases where an employer has a legitimate reason to make employment decisions based on information that would otherwise be protected. Courts have interpreted this exception extremely narrowly but have recognized that employers can have valid reasons for such policies. For example, a health condition likely to cause seizures could properly be considered a threat to others if the employee were a bus driver, thus justifying an employment decision that would otherwise be unlawful under the ADA. Likewise, privacy concerns can justify a policy of only hiring women to work as janitors cleaning women’s rooms -- a practice that would otherwise be unlawful under Title VII. A similar narrow exception should exist for genetic discrimination.If science progresses to the point where it is possible to determine that an individual is virtually certain to have a health condition posing significant risk to others then employers should be able to make employment decisions based on this information.

Family History. A narrowly targeted bill should focus on the action of employment discrimination based on genetic tests, not family history that could be completely unrelated to any tests. Nevertheless, if a cause of action lies for employment actions based on family history of genetic conditions, then it should be of reasonable scope, for example, when the employer has direct knowledge of the history of an immediate family member related by blood. An unreasonable scope, such as any individual related by blood, will be merely an opportunity for plaintiffs’ attorneys to exploit.

Sunset. Any legislative proposal should contain a mechanism to ensure that public policy keeps pace with future advances in genetics, given the rapid evolution in the field. Given the fact that genetic science is in its infancy, legislation barring genetic discrimination will likely not anticipate developments in science that could occur in the near future. As demonstrated by state experience, unintended consequences can sometimes force the legislature to rewrite legislation within just a few years. Consequently, any federal legislation should include a sunset date at which time Congress can decide how effectively the law has worked and whether it should be reauthorized. Putting aside the fact this makes good public policy sense on its face, it is hardly unprecedented. For example, when the Equal Access to Justice Act was first enacted, it contained a sunset provision. Such a model creates a powerful incentive for Congress to revisit the law and make appropriate modifications.

Safe Harbor. Finally, any legislation should recognize the problems faced by employers as they try to comply with the numerous genetic discrimination laws already in existence. More than 30 states have enacted laws prohibiting discrimination based on genetic information. However, these laws vary widely from state to state. If Congress enacts legislation barring employment discrimination based on genetic information then it should include a safe harbor providing that employers in compliance with the federal standards cannot be liable under state or local laws banning such discrimination.