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Preventing Discrimination Based on Genetic Information
Employment Law

Preventing Discrimination Based on Genetic Information

We live in a time of rapid technological advancements, and that includes the field of biotechnology. As services that provide commercial genetic screening become more widespread and affordable, peoples’ genetic information is becoming more accessible. This information includes genetic predispositions to physical characteristics, personality traits, and disorders, to name a few. Unfortunately, this opens up the possibility of people being assessed and responded to based on their genes.

Federal and provincial governments are aware of this possibility. They have begun taking steps to protect people from discrimination based on their genetic characteristics. In Ontario, Bill 40, the Human Rights Code Amendment Act (Genetic Characteristics), 2018, proposes to add “genetic characteristics” as a prohibited ground of discrimination under the Ontario Human Rights Code, as well as providing further protections relating to genetic information, including the introduction of a “right to equal treatment without discrimination because a person refuses to undergo a genetic test or refuses to disclose, or authorize the disclosure of, the results of a genetic test.”

The importance of such protections is clear when considered in the context of employment. For example, without such protections, employers could base hiring decisions on genetic predispositions, regardless of whether such characteristics or disorders are manifest in the job applicant. Further, employers could demand genetic testing and results as a prerequisite to employment, refusing to consider anyone who did not comply. Not only would this force people to provide personal information that is irrelevant to job performance, but it would require many people who do not want to have such genetic information about themselves to acquire it to obtain employment.

It is important to note that many such actions by an employer would already be prohibited by the Code as discrimination based on disability. However, the types of commercial genetic tests already available do not just look at a person’s health, but discuss predispositions to personality traits. As such, the enactment of Bill 40 would not be redundant.

Takeaways

It remains to be seen whether Bill 40 will be enacted. However, Ontario employers should be aware of the likelihood of legislative changes respecting discrimination based on genetic testing, whether it be through Bill 40 or other legislation. Further, it is likely that prohibitions against such discrimination will develop through the Ontario Human Rights Tribunal’s case law should situations relating to discrimination based on genetic information present themselves before such legislative changes come about.

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