Employee Terminated/Cause of Action Dismissed: The Americans with Disabilities Act Provides no Haven for Employees Hypersusceptible to Genetic Illness

Abstract

Because modern technology allows an employer to evaluate an employee's genetic code, the potential practice of discriminating against employees deter­ mined to be hypersusceptible to genetic illness has become a realistic employ­ ment practice. Although these genetically classified employees may be sub­ ject to future employment discrimination based on the employer classifying them as "disabled," the employee will not be able to challenge such a dis­ criminatory practice under the Americans with Disabilities Act. A genetically hypersusceptible employee does not possess the requisite "disability" neces­ sary in order to have an actionable ADA claim against the employer. Because of the developing ability to isolate DNA molecules and to interpret their genetic codes, employers are now capable of evaluating an employee's potential long-term productivity. With a simple blood or urine test, employers can detect whether an employee is "hypersusceptible to an occupational illness in a given job" [1, p. 181; 2, p. 771]. Because of this ability to detect an individual's hypersusceptibility to disease based on genetic information, the issue arises of whether an employer can deny employment, terminate employment, or hinder advancement within employment for a hypersusceptible employee [1, p. 181]. Litigation premised on genetic hypersusceptibility is unreported because employers are just beginning to explore its possible use within the employment field. The enactment of the Americans with Disabilities Act (ADA) [3] may provide one avenue in which a plaintiff may challenge an employer's practice of