Genetic discrimination in the workplace: towards legal certainty in uncertain times

Scientists can analyse DNA to reveal our likelihood of developing certain diseases. As technology advances, it raises questions as to how much emphasis should be placed on genetic testing in the workplace. In 2008 the United States implemented the Genetic Information Nondiscrimination Act, prohibiting employers from using a person's genetic information in the workplace. This article discusses how Australia should act to prevent unjustified genetic discrimination in the workplace. In 2003 a report from the Australian Law Reform Commission and the Australian Health Ethics Committee, entitled Essentially Yours, concluded it was important to legislate now to protect employees from unlawful discrimination rather than wait for the technology to advance. This article assesses and adds to the recommendations of this report. It argues that genetic status should be considered an inherent requirement of a job, and therefore genetic discrimination should be lawful where it may protect employees themselves, third parties at risk and in professions where it is necessary that employees be healthy in the future. However, to avoid unjustified discrimination, genetic information should only be lawfully used in the workplace where there is a very high probability that the disease will manifest within a specified number of years.