In October 1990 a consortium of six countries, comprised of the United States, the United Kingdom, Germany, Japan, China and France, announced their intention to determine the sequence of the three billion chemical base pairs that comprise human DNA, and to identify the 35,000 genes in human DNA through a program called the Human Genome Project ("the Project"). Put more simply, the Project's goal is to produce the human blueprint, and the information obtained by the project will enable a willing party to identify whether he or she has a specific gene or genes that cause, or make them susceptible to, a particular genetic condition.
The Project was originally planned to last 15 years, but rapid technological advances have accelerated the expected completion date to 2003. Not surprisingly, this scientific advancement has created a whirlwind of controversy concerning how, and whether, individual genetic information should be disseminated and used. As the Project moves swiftly towards completion, federal, state and local governments race to enact legislation restricting an employer's use of genetic information obtained through genetic testing. To date genetic discrimination laws have been passed by approximately half the United States. Some states, like Delaware, Maine, and Michigan, allow employers to consider and collect genetic information if the testing is job related and consistent with business activity. Other states, like Rhode Island, Texas and Oklahoma, broadly prohibit genetic discrimination without exception. Although Colorado's state legislature has not yet enacted legislation, the city of Boulder, Colorado may be the next jurisdiction to address this emerging issue.
Boulder's addition to the body of employment law developing around genetic testing comes in the form of an amendment to the city's human rights code. The current version of the code bans employment discrimination based upon "race, creed, color, sex, sexual orientation, gender variance, marital status, religion, national origin, ancestry, age, or mental disability of such individual or such individual's friends or associates . . . ." The proposed amendment would insert a ban on discrimination based upon "genetic characteristics." The term "genetic characteristics" is defined as "all characteristics of an individual that can be transmitted through the person's chromosomes."
While at first blush this language appears to be simple, the proposed legislation may create more questions for Colorado employers than it answers because it is extremely broad. Chromosomes contain genetic information for characteristics as complex as aggressiveness or shyness, and as simple as whether a person is capable of growing a beard or suffering from pattern baldness. Thus, under Boulder's proposed amendment, an employer could arguably be prohibited from terminating an employee with anger management issues, if it is determined that the anger problems are in fact a "genetic characteristic" of that individual. Only time will tell how this proposed amendment effects Boulder employers, if it passes, but what is certain is that the handling and use of genetic information is an issue that many employers may soon be forced to confront.
This article first appeared in the M. Lee Smith Colorado Employment Law Letter. Reprinted with permission of the publisher. Call 1-800-274-6774 for subscription information.
For more information contact Jude Biggs at Holland & Hart LLP at 303-473-2707.