Genetic Information NonDiscrimination: Will This Lead to Smokers Being Protected?

by Michael Haberman on April 11, 2011 · 3 comments


There was a recent article in USA Today entitled Coffee Additction May Be Grounded in Genes. The article states that there is a consumption gene that appears to dictate either high consumption of caffeine or low consumption of caffeine. The head researcher is quoted saying “People don’t really suspect it, but genetics plays a big role in a lot of behaviors, such as smoking and alcohol consumption. And now it turns out that it has a part in how much caffeine we drink.” I have the high consumption gene without a doubt. But that is not what I am focusing on in this post.

My question in the title is based on the quote that specifically said genetics plays a big role in… smoking. Today in alot of states there are moves to try to improve health of employees and to reduce insurance costs to employers. One of the methods of being used is to either allow companies to charge more to smokers or in some cases allow companies to “discriminate” against smokers and not hire them at all. I put discriminate in quotes because smoking is not a recognized protected catagory. (It may be in some states but federally it is not.)

But now I am wondering if we will be seeing lawsuits filed by smokers under GINA protection. After all the Genetic Information Nondiscrimination Act makes it illegal for employers to use individuals’ genetic information when making hiring, firing, job placement, or promotion decisions. If someone smokes, based on information from studies like this, then might they be able to claim that they have a smoking gene? That the reason they smoke is not “personal lifestyle choice” but rather they are following the dictates of their genetic makeup? It seems that someone may see that as a reasonable course of action. I would like to have an attorney weigh in on this one.

I am wondering if there is a link between career choice and genetics. (Actually there is. If you physically talented then you often become an athlete.) Will they discover a gene that “makes” you become a human resources professional? If they find it some may claim it is a gender related gene, at least the ones that say HR is a “female” profession anyway. If so, maybe they can develop a gene therapy to “cure” me and I can get a job that gets some respect and makes some money. (zing) I am just saying.

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{ 2 comments… read them below or add one }

Jon Hyman April 11, 2011 at 11:48 am

Michael,

Very thought provoking post. The thought it provoked in me is how long until we see the first lawsuit claiming genetic information discrimination based on an employee’s sexual orientation?

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Michael Haberman April 11, 2011 at 11:53 am

Ah Jon, another good area for speculation. I don’t think we have even seen the beginning of the use of GINA. Might be a tough defense for a company accused of discrimination.

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