The Genetic Information Nondiscrimination Act as an antidiscrimination law

Notre Dame Law Review

Volumn 86, Issue 2, 2011, Pages 597-648

  Roberts, Jessica L ^a  

^a UNIVERSITY OF HOUSTON   (United States)

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EID: 79959743580     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (342)

1. Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233, 122 Stat. 881
2. (codified in scattered sections of 26, 29, and 42 U. S. C.).
3. The Senate passed GINA 95-0 on April 24, 2008. See 154 CONG. REC. S3374 (daily ed. Apr. 24, 2008).
4. The House then approved the measure 414-1 with Congressman Ron Paul as the lone dissenter on May 1, 2008. See 154 CONG. REC. H2979-80 (daily ed. May 1, 2008).
5. On May 21, 2008, President George W. Bush signed GINA into law. See Remarks on Signing the Genetic Information Nondiscrimination Act of 2008, 44 WEEKLY COMP. PRES. DOC. 736 (May 21, 2008).
6. The Senate had also unanimously passed the bill in 2005. See 151 CONG. REC. S1595 (daily ed. Feb. 17, 2005). GINA has a complicated legislative history; advocates of genetic-information legislation began proposing bills in the early nineties with a new bill introduced in each subsequent Congress until GINA finally passed in 2008.
7. See Mark A. Rothstein, Is GINA Worth the Wait?, 36 J. L. MED. & ETHICS 174 (2008).
8. See generally Jessica L. Roberts, Preempting Discrimination: Lessons from the Genetic Information Nondiscrimination Act, 63 VAND. L. REV. 439, 442-51 (2010) (discussing GINA's legislative and political history).
9. See Genetic Information Nondiscrimination Act of 2008, § 2.
10. See id. §§ 101-106.
11. Section 202 makes it unlawful for an employer (1) to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee; or (2) to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee. Id. § 202.
12. Of the over one hundred law review and legal journal articles mentioning GINA since the statute passed in May 2008, only a handful have come from employment discrimination scholars, analyzing the law from an antidiscrimination perspective. See, e.g., Teneille R. Brown, Double Helix, Double Standards: Private Matters and Public People, 11 J. HEALTH CARE L. & POL'Y 295 (2008);
13. Sharon Hoffman, The Importance of Immutability, 52 WM. & MARY L. REV. (forthcoming 2011);
14. Pauline T. Kim, Regulating the Use of Genetic Information: Perspectives from the U. S. Experience, 31 COMP. LAB. L. & POL'YJ. 693 (2010);
15. Roberts, supra note 2;
16. Rothstein, supra note 2, at 177;
17. Mark A. Rothstein, GINA, the ADA, and Genetic Discrimination in Employment, 36 J. L. MED. & ETHICS 837 (2008).
18. However, GINA has been the subject of several student notes and comments. See, e.g., Patricia Alten, Note, GINA: A Genetic Information Nondiscrimination Solution in Search of a Problem, 61 FLA. L. REV. 379 (2009);
19. Joanne Barken, Note, Judging GINA: Does the Genetic Information Nondiscrimination Act of 2008 Offer Adequate Protection?, 75 BROOK. L. REV. 545 (2009);
20. Rhonda B. Evans, Recent Development, "Striking Out": The Genetic Information Nondiscrimination Act of 2008 and Title IPs Impact on Professional Sports Employers, 11 N. C. J. L. & TECH. 205 (2009);
21. Joan E. Flaherty, Comment, Toxicogenomics and Workers' Compensation: A Reworking of the "Bargain"?, 12 J. HEALTH CARE L. & POL'Y 267 (2009);
22. Amy Foster, Comment, Critical Dilemmas in Genetic Testing: Why Regulations to Protect the Confidentiality of Genetic Information Should Be Expanded, 62 BAYLOR L. REV. 537 (2010);
23. Erin Murphy Hillstrom, Comment, May An Employer Require Employees to Wear "Genes" in the Workplace? An Exploration of Title II of the Genetic Information Nondiscrimination Act of 2008, 26 J. MARSHALL J. COMPUTER & INFO. L. 501 (2009);
24. Jennifer J. Lee, Note, The First Civil Rights Act of the 21st Century: Genetic Information Nondiscrimination Act of 2008, 4 ISJLP 779 (2008);
25. Jeffrey S. Morrow, Note, Insuring Fairness: The Popular Creation of Genetic Antidiscrimination, 98 GEO. LJ. 215, 245 (2009);
26. Recent Legislation, 122 HARV. L. REV. 1038 (2009).
27. See infra notes 105-108 and accompanying text;
28. see also Kim, supra note 6, at 698 ("[individuals with genetic predispositions to disease do not even constitute an identifiable social group. "). But see infra note 112. It appears that kinds of genetic identity groups may be starting to form; however, "genetic identity" as a concept is not yet on par with racial, ethnic, gender, or disability identity.
29. See infra notes 11-17 and accompanying text.
30. See Roberts, supra note 2, at 441.
31. 347 U. S. 483 (1954).
32. As later discussed, GINA protects against discrimination on the basis of an individual's genetic informadon, but not against discriminadon on the basis of a manifested genedc condidon. Thus, many historical examples of genetic-information discrimination-such as the forced sterilization of people with disabilities-would in fact not fall under GINA's definition. Instead, they would be considered discrimination on the basis of genetically based disabilities.
33. I have argued elsewhere that genetic-information discrimination is not currendy happening at rates comparable to the discrimination that prompted the passing of other employment discrimination statutes, such as Tide VII, the Age Discrimination in Education Act (ADEA), and the Americans with Disabilities Act (ADA), making GINA the first preemptive antidiscrimination statute in American history. See Roberts, supra note 2, at 441; see also Gaia Bernstein, The Paradoxes of Technological Diffusion: Genetic Discrimination and Internet Privacy, 39 CONN. L. REV. 241, 245 (2006) ("Genetic discrimination is rare and apparendy on the decline."). The "optin" nature of genetic information could, in part, explain the low levels of current discrimination. See infra note 120 and accompanying text.
34. See Roberts, supra note 2, at 464-66
35. (discussing Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260 (9th Cir. 1998)
36. EEOC v. Burlington N. & Santa Fe Ry. Co., 2002 WL 32155386 (E. D. Wis. May 8, 2002), and Terri Sergeant's ADA claim with the EEOC).
37. See Genetic Employment Laws, NAT'L CONF. STATE LEGISLATURES, http://www. (discussing Pamela Fink's allegation that her employer improperly fired her following her preventive double mastectomy).
38. See Colin S. Diver & Jane Maslow Cohen, Genophobia: What Is Wrong with Genetic Discrimination?, 149 U. PA. L. REV. 1439, 1476-77 (2001). (Pubitemid 33656791)
39. In a previous article, I proposed that Congress had two primary motivations in passing GINA: a research justification-geared toward alleviating fear surrounding genetic testing-and an antidiscrimination justification.
40. See Roberts, supra note 2, at 471-80.
41. See Robert Klitzman, Views of Discrimination Among Individuals Confronting Genetic Disease, 19 J. GENETIC COUNS. 68, 69 (2010);
42. Roberts, supra note 2, at 471-74;
43. see also Bernstein, supra note 12, at 288 ("[T]he failure of the current patchwork of state and federal laws in affecting individuals' public fears points to the need for a comprehensive federal statute.");
44. Kim, supra note 6, at 699 ("GINA, then, is more about addressing the perception or fear of genetic discrimination than reversing any present reality of such discrimination. ").
45. See Hearing on H. R. 493, supra note 15, at 44 (statement of Kathy Hudson, Director, Genetics and Public Policy Center);
46. see also Karen H. Rothenberg & Sharon F. Terry, Before It's Too Late-Addressing Fear of Genetic Information, 297 SCIENCE 196, 196 (2002) (citing studies documenting the fear surrounding genetic testing);
47. Daniel Schlein, New Frontiers for Genetic Privacy Law: The Genetic Information Nondiscrimination Act of 2008, 19 GEO. MASON U. C. R. L. J. 311, 315-16 (2009) (same).
48. See GENETICS & PUB. POL'Y CTR., U. S. PUBLIC OPINION ON USES OF GENETIC INFORMATION AND GENETIC DISCRIMINATION 1-3 (2007)
49. [hereinafter U. S. PUBLIC OPINION], http://www.dnapolicy.org/resources/ GINAPublic-Opinion-Genetic-Information-Discrimination.pdf (surveying 1199 adults eighteen and over regarding their fears surrounding access to their genetic test results).
50. See Standards for Privacy of Individually Identifiable Health Information, 65 Fed. Reg. 82, 462, 82, 466 (Dec. 28, 2000) (to be codified at 45 C. F. R. pts. 160, 164) (quoting Sen. Patrick Leahy) (explaining that one-third of women offered a genetic test for breast cancer declined out of fear of discrimination);
51. Email from John Quillin, Genetic Counselor, to Amanda Sarata (Sept. 9, 2004, 10:59 AM), reproduced in SEC'Y'S ADVISORY COMM. ON GENETICS, HEALTH, & SOC'Y, U. S. DEP'T OF HEALTH & HUMAN SERVS., PUBLIC PERSPECTIVES ON GENETIC DISCRIMINATION 93 (2004) [hereinafter Pubuc Perspectives] ("[F]ear of discrimination is a prevalent and influential concern among actual or would-be genetic counseling patients.");
52. Bernstein, supra note 12, at 261 ("[R]esearch has shown that fear of genetic discrimination by insurers and employers is the primary barrier against testing.");
53. Klitzman, supra note 18, at 77-78 (describing the effect of fear of discrimination on genetic testing and treatment decisions).
54. See Carolyne Park, Genetics Offers Tool in Combat of Cancer, ARK. DEMOCRAT-GAZETTE, Aug. 24, 2008, at 1 (quoting Dr. Kent McKelvey) (noting that genetic tests are "fundamentally different from traditional medical tests" because of their immediate impact on family members);
55. see also PUBUC PERSPECTIVES, supra note 21, 20-21 (testimony of Carolina Hinestrosa, a breast cancer survivor and Executive Vice President of National Breast Cancer Coalition) (explaining that she avoided genetic testing out of fear that it might negatively impact her daughter);
56. Olympia J. Snowe, Genetic Non-Discrimination-Time to Act to Protect Our Privacy, OLYMPIA J. SNOWE: U. S. SENATOR FOR ME. (July 16, 2004), http://snowe.senate.gov/wsu07-16-04.htm (describing a constituent's letter in which a mother declined genetic testing out of concern for her daughter).
57. See Bernstein, supra note 12, at 288 (noting that in the context of AIDS testing "reducing the actual level of risk would not necessarily reduce the perceived risk"). Even if the underlying fear is irrational, addressing it could still have positive effects if eliminating that fear would lead to better health services and advances in scientific research. See also MICHELE SCHOONMAKER & ERIN WILLIAMS, CONG. RESEARCH SERV., GENETIC TESTING: SCIENTIFIC BACKGROUND AND NONDISCRIMINATION LEGISLATION 2 (2004) ("[N]ew legislation is needed to allay the fears of individuals about the potential for discriminatory practices so that they can seek beneficial health services, participate in much-needed clinical research, and otherwise reap the benefits of the publically funded Human Genome Project (HGP).").
58. See PUBLIC PERSPECTIVES, supra note 21, at 20-21 (testimony of Carolina Hinestrosa);
59. Paul Steven Miller, Is There a Pink Slip in My Genes? Genetic Discrimination in the Workplace, 3 J. HEALTH CARE L. & POL'Y 225, 234 (2000) ("Refusal to submit to genetic tests due to fear of discrimination results in negative consequences both for the individuals who do not get tested and for the advancement of scientific research in this area.");
60. Rivkajungreis, Note, Fearing Fear Itself: The Proposed Genetic Information Nondiscrimination Act of 2005 and Public Fears About Genetic Information, 15 J. L. & POL'Y 211, 244 (2007) (observing that assuaging public fear of genetic testing will benefit society "in two spheres-that of the advancement of scientific research, and that of the individual's pursuit of optimal healthcare");
61. Senate Passes Bill Barring Genetic Discrimination, ISSUES SCI. & TECH., Winter 2003, at 24, 24 (quoting Sen. Bill Frist);
62. see also Perry W. Payne, Jr., Genetic Information Nondiscrimination Act of 2008: The Federal Answer for Genetic Discrimination, 5 J. HEALTH & BIOMEDICAL L. 33, 38 (2009) (noting that genetic research is slowed by the fear of misuse of genetic information).
63. See Protecting Workers from Genetic Discrimination: Hearing Before the Subcomm. on Health, Emp't, Labor and Pensions of the H. Comm. on Educ. and Labor, 110 th Cong. 31 (2007) [hereinafter Protecting Workers from Genetic Discrimination] (statement of Karen Rothenberg, Dean, University of Maryland School of Law);
64. see also Hearing on H. R. 493, supra note 15, at 40 (statement of Karen Pollitz, Research Professor, Georgetown University Health Policy Institute) (describing adverse actions insurance companies take in response to knowledge of clients' genetic test results);
65. Regulations Under the Genetic Information Nondiscrimination Act of 2008, 75 Fed. Reg. 68, 912, 68, 912 (Nov. 9, 2010) (to be codified at 29 C. F. R. pt. 1635) ("Scientific advances require significant cooperation and participation from members of the general public.");
66. U. S. PUBLIC OPINION, supra note 20, at 1 (noting genetic research and clinical practice are impeded when people opt out of genetic testing);
67. Letter from Michael O. Leavitt, U. S. Sec'y of Healdi & Human Servs., to Reed V. Tuckson, Chair, Sec'y's Advisory Comm. on Genetics, Healdi, & Soc'y (Nov. 8, 2005), available at http://oba.nih.gov/oba/sacghs/reports/ Secretary-Response-to-SACGHS-l l-08-05.pdf (" [T] he public is concerned about the potential for genetic discrimination in health insurance and employment and... their fears have the potential to affect their health care decisions and dieir willingness to participate in genetics research.").
68. See Meredith Simons, Need Medical Treatment? Get It Your Way: Houston Researchers Lead the Way in Tailoring Therapy to Patients' DNA, cHRON. COM (Nov. 14, 2009), http://www.chron. com/disp/story.mpl/health/6721058.html.
69. See Zach Wamp, A Look into Your Future Health?, WASH. TIMES, Jan. 5, 2004, at A15 ("We must not allow the fear of discrimination on the basis of genetic information to impede this groundbreaking medical progress.");
70. Sen. Gregg Pushes for Protection of Patients from Genetic Discrimination, U. S. FED. NEWS, July 22, 2004;
71. see also NANCY LEE JONES & AMANDA K. SARATA, CONC. RESEARCH SERV., THE GENETIC INFORMATION NONDISCRIMINATION ACT OF 2008 (GINA), at ii (2008) (stating that Congress enacted GINA to address fears of genetic-information discrimination, which have "an adverse effect on those seeking genetic testing, as well as on participation in genetic research"). The National Human Genome Research Institute, an organization that lobbied in favor of GINA, identified the fear of genetic discrimination as a major hurdle to genetic science and to enjoying the benefits of the Human Genome Project.
72. See, Nat'l Hum. Genome Research Inst., Genetic Discrimination, gENOME. GOV, http://www.genome.gov/10002077 (last updated Nov. 26, 2010).
73. Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233, § 2(5), 122 Stat. 881 (emphasis added);
74. see also Regulations Under the Genetic Information Nondiscrimination Act of 2008, 75 Fed. Reg. 68, 912, 68, 912 (Nov. 9, 2010) (explaining that Congress intended GINA to "prohibit[] discrimination based on genetic information and [to] restrict[] acquisition and disclosure of such information, so that the general public would not fear adverse employment-or health coverage-related consequences for having a genetic test or participating in research studies that examine genetic information").
75. I discuss possible problems with basing legislation on fear in another article. See Roberts, supra note 2, at 480-83.
76. Typically, "genetic determinism" stands for the proposition that genes unilaterally determine physical and behavioral traits, called phenotypes. See Richard Strohman, Maneuvering in the Complex Path from Genotype to Phenotype, 296 SCIENCE 701 (2002);
77. see also Karen H. Rothenberg, Breast Cancer, the Genetic "Quick Fix", and the Jewish Community: Ethical, Legal, and Social Challenges, 7 HEALTH MATRIX 97, 103 (1997) ("[G]enetic determinism results when an individual believes her future is defined and predicted by genetic makeup and cannot be changed."). Societies can likewise be genedcally deterministic, using genedc informadon to limit people's choices or their freedom. (Thank you to Jessica Clarke for her use of the word "determinism" in describing this sendment as it pertains to antidiscrimination law.) Thus, under one scenario, genes are biologically deterministic; under the other, they are socially deterministic. This Article deals exclusively with the latter, which I call "social genetic determinism."
78. Gattaca (Columbia Pictures 1997).
79. See, e.g., Michael Tomasson, Legal, Ethical, and Conceptual Bottlenecks to the Development of Useful Genomic Tests, 18 ANNALS HEALTH L. 231, 239-40 (2009);
80. Jeffery Lawrence Weeden, Genetic Liberty, Genetic Property: Protecting Genetic Information, 4 AVE MARIA L. REV. 611, 662-63 (2006);
81. Jeremy A. Colby, Note, An Analysis of Genetic Discrimination Legislation Proposed by the 105th Congress, 24 AM. J. L. & MED. 443, 444 n. 5 (1998);
82. Marisa Anne Pagnatarro, Note, Genetic Discrimination and the Workplace: Employee's Right to Privacy v. Employer's Need to Know, 39 AM. BUS. L. J. 139, 184-85 (2001).
83. See JACQUELINE VAUGHN SWITZER, DISABLED RIGHTS 36 (2003).
84. See id. at 34-38.
85. See id. Eugenics and social genedc determinism are not identical concepts. Eugenics as an ideology has two key elements: (1) linking certain unfavorable (or favorable) characteristics to genetics and (2) seeking to eliminate those negative genes (or alternatively to promote those positive ones), making it arguably one of the earliest iterations of genedc engineering. See WILLIAM F. ROWE & SANDRA SAVAGE, SEXUALITY AND THE DEVELOPMENTALLY HANDICAPPED 6-8 (1987). Conversely, a genetically deterministic society need only implicate the first half of the definition: society may shunt people with particular genetic traits into various organizations, institutions, occupations, or social classes based on the perceived favorability of those characterisdcs but would not necessarily advocate the eradicadon of unfavorable genes ("negadve eugenics") or the promotion of favorable genes ("positive eugenics").
86. See LORI B. ANDREWS ET AL., GENETICS 81 (2d ed. 2006) (distinguishing between positive and negative eugenics). Thus, all examples of eugenics involve some element of social genetic determinism, yet all examples of social genetic determinism may not rise to the level of eugenics.
87. See SWITZER, supra note 33, at 48-51.
88. See id. at 36.
89. See Buck v. Bell, 274 U. S. 200, 205 (1927).
90. Id. at 207.
91. See SWITZER, supra note 33, at 38
92. Virginia's sterilization law was repealed in 1968. See id.
93. See Michael G. Silver, Note, Eugenics and Compulsory Sterilization Lams: Providing Redress for the Victims of a Shameful Era in United States History, 72 GEO. WASH. L. REV. 862, 886-87, 887 nn. 221-22 (2004) (citing Press Release, Governor Mark R. Warner, Statement on the 75th Anniversary of the Buck v. Bell Decision (May 2, 2002)).
94. Although the Court did not overturn Buck, fifteen years later it held that involuntarily sterilizing individuals convicted of certain kinds of felonies violates equal protection. See Skinner v. Oklahoma, 316 U. S. 535, 538 (1942).
95. 274 U. S. 200 (1927).
96. See Alan R. Felthous & Ernest S. Barrett, Impulsive Aggression, in AGGRESSION 123, 127 (Emil F. Coccaro ed., 2003).
97. See generally Boris Tabakoff & Paula L. Hoffman, Genetics and Biological Markers of Risk for Alcoholism, 103 PUB. HEALTH REP. 690 (1988) (discussing evidence that some individuals are genetically predisposed to alcoholism).
98. See Kathleen Kingsbury, Which Kids foin Gangs? A Genetic Explanation, TIME (June 10, 2009), http://www.time.com/time/health/article/0, 8599, 1903703, 00.html. A genetic variation that may code for the lower production of a particular enzyme responsible for breaking down a variety of neurotransmitters could be responsible for increased aggression. See id. This particular trait has been called the "warrior gene" and created controversy in New Zealand when offered as an explanation for the perceived heightened violence in the Maori community.
99. See Peter Crampton & Chris Parkin, Warrior Genes and Risk-Taking Science, 120 N. Z. MBED J., Mar. 2, 2007, at 63, 63-65, http://www.nzma.org.nz/ journal/120-1250/2439 (summarizing ethical concerns associated with the supposed "warrior gene" as an explanation for Maori violence in New Zealand). In a similar logical move, the FSU study proposes that lowered production of that same enzyme in young men may be linked to a greater likelihood of joining gangs and using weapons. See Kingsbury, supra. According to the study, young men with the low-active variant were twice as likely to join a gang as men with the high-active variant. See id.
100. Klitzman, supra note 18, at 77 (alteration in original).
101. Id. at 72-73 (alterations in original).
102. Research regarding a gene linked to aggression, as well as other potentially negative behaviors, does in fact exist. See supra notes 45-47 and accompanying text.
103. Some scholars articulated the potential benefits of using genetic information to differentiate between children in the classroom. See Dorothy Nelkin & Laurence Tancredi, Classify and Control: Genetic Information in the Schools, 17 AM. J. L. & MED. 51, 69 (1991) ("Schools have long differentiated and classified students through diagnostic and evaluative tests. Detailed and sensitive information about individual children-their genetic makeup, predisposition to violence and mental illness, brain structure and susceptibility to disease-serves well-recognized educational needs. It also serves administrative needs, enhancing efficiency and economy in the management of education. Technologies that assess genetic capabilities and reveal biochemical states that 'cause' behavior enable educators to predict which children will be slow learners, disruptive, handicapped or difficult in the classroom." ((footnote omitted)).
104. See Blame Genetics for Bad Driving, Study Finds, CNN (Oct. 29, 2009), http://www.cnn. com/2009/TECH/science/10/29/bad.driver.gene/index.html?iref= allsearch.
105. Some have argued that what frightens us is not creating a genetically determined underclass but rather explicitly recognizing that an implicit genetic underclass already exists. See, e.g., Robert H. Bork, The Challenges of Biology for Law, 4 TEX. REV. L. & POL. 1, 3 (1999).
106. See MICHAEL H. SHAPIRO ET AL., BIOETHICS AND LAW 741 (2d ed. 2003) ("[T]he risks of reducing persons to objects consisting of particular characteristics that have become salient precisely because we can exercise some control over them.").
107. See NGAIRE NAFFINE, LAW'S MEANING OF LIFE 99 (2009) ("Legal doctrine and legal philosophy are replete with assertions about the instrinsic value of human life and the need to respect it").
108. See SHAPIRO, supra note 54, at 10;
109. see also Andrea Dworkin, Against the Male Flood: Censorship, Pornography, and Equality, 8 HARV. WOMEN'S L. J. 1, 15 (1985) (discussing objectification in the context of gender discrimination, and stating, "Objectificadon occurs when a human being, through social means, is made less than human, turned into a thing or commodity, bought and sold").
110. 4 OXFORD ENGUSH DICTIONARY 443 (2d ed. 1989) (providing the modern use of the term "democracy").
111. See Devon W. Carbado & Cheryl I. Harris, The New Racial Preferences, 96 CAUF. L. REV. 1139, 1141 (2008) (describing meritocracy as a "core American value").
112. The Oxford English Dictionary defines "meritocracy" as "government or holding of power by people chosen on the basis of merit (as opposed to wealth, social class, etc)." 9 OXFORD ENGLISH DICTIONARY, supra note 57, at 635;
113. see Norman Daniels, Merit and Meritocracy, 7 PHIL. & PUB. AFF. 206, 207-08 (1978) (defining "meritocracy" as: "a society whose basic institutions are governed by a partial theory of distributive justice consisting of principles of the following types: (1) A principle of job placement that awards jobs to individuals on the basis of merit; (2) A principle specifying the conditions of opportunity under which the job placement principle is applied; (3) A principle specifying reward schedules for jobs."). The concept of a meritocracy does not, however, completely discount innate ability. Daniels notes that "most meritocrats believe it is obvious that people differ in levels of skill and it is at least probable that they differ in the capacity to acquire levels of skills." Id. at 208.
114. See Daniels, supra note 59, at 207 (describing a meritocracy as an environment where "[a]ll social barriers...-social class, family background (but not the family), race, and religion-are prevented from influencing decisions on education or career"); id. at 217 ("Fair equality of opportunity requires not only that negative legal or quasilegal constraints on equality of opportunity be eliminated, but also that positive steps must be taken to provide equality of access-and the means to achieve such equality of access-to those with inferior initial competitive positions resulting from family background or other biological or social accidents.").
115. See Bork, supra note 53, at 3 (noting we might also fear "the inability of genetic testing to predict accurately what the individual might prove capable of accomplishing").
116. Immutability as a concept in antidiscrimination law relies on the notion that fairness is a matter of free will, dependent on freedom of choice and taking responsibility for those choices. See Roberts, supra note 2, at 476 & n. 187 (discussing the immutability norm's basis in the concept of free will). In fact, protecting race, sex, national origin and-even at times-age and disability has been linked to those traits' perceived immutability. See id. at 477 & nn. 189-93 and accompanying text. Religion is the most prominent exception to the immutability norm. See id. at 477 n. 194 and accompanying text.
117. See Ilise L. Feitshans, Spider Silk Jeans or Spider Silk Genes?: The Future of Genetic Tesdng in the Workplace 20 (2000) (unpublished manuscript), http://ssrn. com/paper.taf?abstract-id=248671 ("In the next years, humanity will have the information to change many... aspects of genetic destiny. Genes linked to color blindness, colon cancer, Huntington's disease, Down[] Syndrome, or other conditions that are considered to be a 'defect' today may be altered or deleted through new treatments or cures. For others, genes bring special gifts, such as physical strength, great intelligence, artistic ability or musical talent."). By 2020, Dr. Francis S. Collins, former director of the National Human Genome Research Institute, speculates that "gene-based designer drugs" will be capable of treating numerous conditions such as Alzheimer's, diabetes, and high blood pressure. See Genetic Information in the Workplace: Hearing on S.1332 Before the S. Comm. on Health, Educ., Labor, & Pensions, 106th Cong. 1 (2000) (testimony of Dr. Francis S. Collins, National Human Genome Research Institute).
118. Although some gene therapy is currently available, most is somatic; doctors insert therapeutic genes into a patient's body cells, in the hope that those cells will then reproduce. See Kristine Barlow-Stewart, Gene Therapy, CENTRE FOR GENETICS EDUC. (June 2007), http://www.genetics.com.au/pdf/ factsheets/fs27.pdf.
119. Advocates of genetic information legislation have cited the immutable nature of genes to justify the need to protect them. See Hearing on H. R. 493, supra note 15, at 106 (statement of Frank S. Swain) ("[W]e are born with our 46 chromosomes and 30, 000 genes. We cannot control or change them." (quoting Rep. Louise Slaughter));
120. Roberts, supra note 2, at 478 ("No American should have to worry that their genes-which they did not choose, and over which they have no control-will be used against them."). Individuals who felt they had suffered discrimination on the basis of their genes have likewise cited the immutability of genetic information as evidence of the unfairness of their treatment. See, e.g., Letter from Michelle Thompson to Whom It May Concern (Sept. 24, 2004), reproduced in PUBLIC PERSPECTIVES, supra note 21, at 65 ("I learned that not only was I a carrier for Hemophilia (which was not my fault or choice), but that I had a 50% chance of inheriting Huntington's Disease as well (not my fault or choice)."). Scholarly accounts also echoed this sentiment.
121. See, e.g., Jennifer S. Geetter, Coding for Change: The Power of the Human Genome to Transform the American Health Insurance System, 28 AM. J. L. & MED. 1, 3 (2002) ("Genetic discrimination is unfair because it penalizes people (by limiting their coverage options) not because of dieir actions or choices, but because of their immutable genotype.");
122. Eric Mills Holmes, Solving the Insurance/Genetic Fair/Unfair Discrimination Dilemma in Light of the Human Genome Project, 85 KY. L. J. 503, 563 (1997) ("Since one cannot choose one's genetic make-up, arguably there should be no duty to pay more for insurance because of a poor genetic make-up. ");
123. see also Colby, supra note 32, at 457 ("Genetic discrimination unfairly discriminates because of the involuntary and presendy immutable nature of our genetic endowment.").
124. But see Sonia M. Suter, The Allure and Peril of Genetics Exceptionalism: Do We Need Special Genetics Legislation?, 79 WASH. U. L. Q. 669, 712 (2001) (arguing against using immutability to justify protecting genetic information because "[although we cannot control the genes we inherit, we cannot control a great many other risk factors, such as in utero exposures, environmental conditions, or drunk drivers, which may have profound effects on our future health").
125. For instance, one scientist involved in the FSU study noted that "[a]t the very least this [research] suggests a genetic risk factor that can help us identify those youth most at risk.... We can then intervene earlier to prevent it." Kingsbury, supra note 47.
126. See Laura F. Rothstein, Genetic Information in Schools, in GENETIC SECRETS 317, 322 (Mark A. Rothstein ed., 1997) (acknowledging the potential problem of labeling and self-fulfilling prophecy that could be associated with the use of genetic information in academics).
127. See Kingsbury, supra note 47 (noting the correlation between child abuse and violent tendencies).
128. See Robert G. Resta, The Twisted Helix: An Essay on Genetic Counselors, Eugenics, and Social Responsibility, 1 J. GENETIC GOUNS. 227 (1992);
129. see also Shapiro, supra note 54, at 883, 885-86.
130. See SHAPIRO, supra note 54, at 403-04 (distinguishing between instrumental and intrinsic value of privacy).
131. See Mary R. Anderlik & Mark A. Rothstein, Privacy and Confidentiality of Genetic Information: What Rules for the New Science?, 2 ANN. REV. GENOMICS HUM. GENETICS 401, 405 (2001). For more on the "opt-in" nature of genetic information, see infra notes 118-120. Individuals have expressed instrumental privacy concerns. For example, one person who had undergone genetic testing explained why others avoid testing: People are afraid of it getting on the record, so they don't get tested. The people I know who tested were already very sick. The son of a guy in our group is beginning to be symptomatic. The father tells him to get tested, but he just refuses. "I don't want to know, and don't want it on my record." And you have to reach a certain level before doctors consider [medication].
132. Klitzman, supra note 18, at 77. Similarly, a 2007 study indicates that while individuals might trust their doctors and their spouses with the results of their genetic tests, they had far less confidence when asked about sharing that information with law enforcement, health insurers, or employers. U. S. PUBUC OPINION, supra note 20, at 2.
133. SISSELA BOK, SECRETS 20 (1983).
134. ELLEN ALDERMAN & CAROLINE KENNEDY, THE RIGHT TO PRIVACY, at xiii (1995) ("Privacy... encompasses our right to self-determination and to define who we are. Although we live in a world of noisy self-confession, privacy allows us to keep certain facts to ourselves if we so choose.").
135. See David Orendicher, Genetic Privacy in the Patient-Physician Relationship, in GENETIC SECRETS, supra note 67, at 77, 78.
136. See Morrow, supra note 6, at 237-39 (noting the privacy concerns behind protecting genetic information).
137. Huntington's disease is a popular example in the literature dealing with genetic-information discrimination because if a person has the associated genetic trait, she has a one hundred percent chance of developing the disease (assuming she lives long enough to reach the onset age). See Henry T. Greely, The Revolution in Human Genetics: Implications for Human Societies, 52 S. C. L. REV. 377, 382 (2001) ("[Huntington's disease] is what geneticists call one hundred percent penetrant-one hundred percent of the people with the genotype get the disease.").
138. See Laurent Seugnet et al., Identifier of a Biomarker for Sleep Drive in Flies and Humans, 103 PNAS 19, 913, 19, 913-18 (2006).
139. See Siamak Baharloo et al., Absolute Pitch: An Approach for Identification of Genetic and Nongenetic Components, 62 AM. J. HUM. GENETICS 224, 229 (1998).
140. See Anderlik & Rothstein, supra note 71, at 404 (asserting that there is an intrinsic value to keeping genetic information private)
141. See Orentlicher, supra note 74, at 81 (noting that privacy is particularly important to genetic information because it reveals intimate information about one's family members).
142. Genetic privacy laws function by requiring consent from the relevant party to access her genetic information. In 2008, when GINA passed, several states already protected genetic information using privacy legislation. See Genetic Privacy Laws, NAT'L GONF. OF STATE LEGISLATURES, http://www.ncsl.org/ default.aspx?tabid=14287 (last updated Jan. 2008).
143. Congress also considered privacy-based protections. In fact, early iterations of GINA direcdy referenced genetic privacy, such as several proposed bills called the "Genetic Privacy and Nondiscrimination Act" and others. E.g.
144. H. R. 3636, 108th Cong. (2003);
145. H. R. 2555, 106th Cong. (1999);
146. H. R. 3299, 105th Cong. (1998);
147. H. R. 341, 105th Cong. (1997);
148. S. 422, 105th Cong. (1997);
149. S. 1898, 104th Cong. (1996);
150. S. 1416, 104th Cong. (1995).
151. For example, the Human Genome Privacy Act of 1991, H. R. 2045, 102d Cong. (1991), gave individuals the right to inspect and correct any of dieir genetic informadon maintained by government agencies and oudined the process for disclosing private genedc informadon. Likewise, certain versions of the "Genedc Privacy and Nondiscrimination Act" also provided requirements for disclosing genedc informadon.
152. See H. R. 341 § 4; S. 1416 § 4.
153. While several proposed bills included sections on disclosure, GINA contains no such provision. Perhaps Congress ultimately rejected a privacy framework because it would not provide adequate protection. Although people would be able to control access to their genetic information, genetic-information consent forms could become a standard component of applications for jobs or insurance. See Klitzman, supra note 18, at 75. Thus, people may feel compelled to disclose dieir genetic information as a routine part of the application process. Alternatively, if an individual chooses not to disclose her genetic information, potential discriminators may assume that an individual has negative genetic traits and behave accordingly.
154. Congress could also have protected genetic information using property law. At the time of GINA's passing, five states defined genetic information as personal property, with one extending that right to DNA samples. See Genetic Privacy Laws, supra note 81. Thus, in protecting genetic information, Congress could have established specific property interests in genetic material under certain circumstances. A number of scholars have suggested this approach. See, e.g., Anita L. Allen, Genetic Privacy: Emerging Concepts and Values, in GENETIC SECRETS, supra note 67, at 31, 47;
155. Patricia (Winnie) Roche et al., The Genetic Privacy Act: A Proposal for National Legislation, 37 JURIMETRICS J. 1, 4 (1996) (advocating a property right in one's DNA);
156. Catherine M. Valerio Barrad, Comment, Genetic Information and Property Theory, 87 NW. U. L. REV. 1037, 1040 (1993);
157. Michael M. J. Lin, Note, Conferring a Federal Property Right in Genetic Material: Stepping into the Future with the Genetic Privacy Act, 22 AM. J. L. & MED. 109, 130-32 (1996);
158. Jonathan F. Will, Comment, DNA as Property: Implications on the Constitutionality of DNA Dragnets, 65 U. PITT. L. REV. 129, 139-41 (2003). Unlike the extensive consideration of privacy protections, only one of the many proposed bills dedicated to genedc information included a personal property right.
159. See Genetic Confidentiality and Nondiscrimination Act, S. 1898, 104th Cong. § 105 (2) (1996) ("A DNA sample is the property of the individual.").
160. Property law is in many ways an intuitive choice for protecting our genetic identities, given the commodification of genetic material. Federal law permits researchers to patent genetic information, including isolated genes and gene fragments.
161. See Sonia M. Suter, Disentangling Privacy from Property: Toward a Deeper Understanding of Genetic Privacy, 72 GEO. WASH. L. REV. 737, 745-46 nn. 28-31 (2004). However, significant drawbacks also exist. For example, with respect to research, scientists rely on large numbers of samples to draw conclusions about genetic information. Personal property interests in genetic material could, therefore, potentially stymie science if all donors needed to consent to each activity conducted with dieir genetic material. Additionally, property law confers a purely economic right, which fails to acknowledge the dignitary concerns underlying the protection of genetic information. See Suter, supra, at 746-47 ("[In a property law model,] genetic information is seen as a commodity, disaggregated from the self, rather than something in which we have a dignitary and personhood interest. In addition, even when the property model successfully protects some of the interests we have in our genetic information, the property model undermines the relationships in which we share this information, pushing them toward arms-length transactions as opposed to relationships of trust.").
162. See Dawn C. Nunziato, Note, Gender Equality: States as Laboratories, 80 VA. L. REV. 945, 946 (1994) (defining the antidiscrimination principle as "one of negative restraint that forbids the government from arbitrarily discriminating against classes of individuals"). (Pubitemid 24793731)
163. GINA's exceptions may in practice require disclosure agreements. However, those disclosure agreements are not the primary tool by which GINA functions.
164. For example, Senator Ted Kennedy called GINA "the first major... civil rights bill of the new century" and asserted that "discrimination based on a person's genetic identity is just as unacceptable as discrimination on the basis of race or religion. " U. S. Blocks Genetic Discrimination, BBC NEWS (Apr. 25, 2008), http://www.bbc.co. Uk/2/hi/americas/7366264.stm. Similarly, President George W. Bush stated that "|j]ust as we have addressed discrimination based on race, gender and age, we must now prevent discrimination based on genetic information. "
165. David E. Sanger, Bush Supports Federal Law Putting Limits on DNA Tests, N. Y. TIMES, June 24, 2001, at 10.
166. See Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233, § 2(2), 122 Stat. 881, 882
167. (codified at 42 U. S. C. § 2000ff (Supp. II 2008)) ("The early science of genetics became the basis of State laws that provided for the sterilization of persons having presumed genetic 'defects' such as mental retardation, mental disease, epilepsy, blindness, and hearing loss, among other conditions. The first sterilization law was enacted in the State of Indiana in 1907. By 1981, a majority of States adopted sterilization laws to 'correct' apparent genetic traits or tendencies. Many of these State laws have since been repealed, and many have been modified to include essential constitutional requirements of due process and equal protection. However, the current explosion in the science of genetics, and the history of sterilization laws by the States based on early genetic science, compels Congressional action in this area.").
168. See id. § 2 (3) ("Although genes are facially neutral markers, many genetic conditions and disorders are associated with particular racial and ethnic groups and gender. Because some genetic traits are most prevalent in particular groups, members of a particular group may be stigmatized or discriminated against as a result of that genetic information. This form of discrimination was evident in the 1970s, which saw the advent of programs to screen and identify carriers of sickle cell anemia, a disease which afflicts African-Americans. Once again, State legislatures began to enact discriminatory laws in the area, and in the early 1970s began mandating genetic screening of all African Americans for sickle cell anemia, leading to discrimination and unnecessary fear. To alleviate some of this stigma, Congress in 1972 passed the National Sickle Cell Anemia Control Act, which withholds Federal funding from States unless sickle cell testing is voluntary.").
169. Title I bars the use of genetic information by health insurers in determining eligibility or premiums. Although both titles of GINA protect against discrimination on the basis of genetic information, Titles I and II approach the issue differently. Tide II constitutes its own stand-alone section of the United States Code, whereas Tide I-like HIPAA-amends sections of various significant federal health insurance legislation.
170. See Mark A. Rothstein, Why Treating Genetic Information Separately Is a Bad Idea, 4 TEX. REV. L. & POL. 33, 33 (1999) (noting that creating a "working definition" of genetic information is next to impossible, as any definition will be at once over-and underinclusive);
171. see also Morrow, supra note 6, at 239-45 (discussing the problems associated with establishing genetic information as a distinct category).
172. Other behaviors that may have genetic bases include: the need for sleep, see Mark Henderson, Genetic Mutation May Be Why Some People Need Less Sleep than Others, TIMES (London), Aug. 14, 2009, http://www.timesonline.co.uk/tol/life- and-style/health/article6795361.ece; the predisposition for anger
173. see Felthous & Barratt, supra note 45, at 127; and the ability to recognize pitch
174. see Jen Waters, Genes May Play a Sob in Pitch Recognition, WASH. TIMES, Feb. 1, 2007, at B01.
175. See, e.g., Tabakoff & Hoffman, supra note 46, at 690-91.
176. See, e.g., Anthony G. Comuzzie & David B. Allison, The Search for Human Obesity Genes, 280 SCIENCE 1374, 1374-76 (1998).
177. See Kingsbury, supra note 47.
178. Congress explicitly differentiated genetic information from existing antidiscrimination categories. For example, although sex is a genetically determined trait, GINA excludes sex from the definition of "genetic information. " See Genedc Information Nondiscriminadon Act of 2008, Pub. L. No. 110-233, §§ 101(d), 102(a) (1) (B), 103(d), 104(b), 201(4) (C), 122 Stat. 881, 884, 888, 897, 900, 906 (codified in scattered secdons of 26, 29, and 42 U. S. C.). GINA also excludes age from its definidon of "genedc informadon. " See id. § 201 (4) (c). GINA distinguishes between genetically based healdi conditions and their associated genes. See id. § 101 (d) (excluding the "analysis of proteins or metabolites that does not detect genotypes, mutations, or chromosomal changes", or "an analysis of proteins or metabolites that is directly related to a manifested disease, disorder, or pathological condition that could reasonably be detected by a healdi care professional with appropriate training and expertise in the field of medicine involved" from the definition of "genetic test" in Tide I); id. § 210 (excluding "the use, acquisition, or disclosure of medical information that is not genetic information about a manifested disease, disorder, or pathological condition", even if such "has or may have a genetic basis" from the definition of "genetic information" in Tide II).
179. See id. §§ 101(d), 102(a) (1) (B), 103(d), 104(b), 201 (4) (A) (i) - (iii). The definition of genetic information also includes requesting or receiving genetic services, such as participating in clinical research, by an individual or by members of her family. See id. §§ 101 (d), 1(4) (A) (i) - (iii). The definition of genetic information also includes requesting or receiving genetic services, such as participating in clinical research, by an individual or by members of her family. See id. §§ 101 (d), 1), 102(a) (1) (B), 103(d), 104(b), 201 (4) (B).
180. See id. §§ 101(d), 102(a) (1) (B), 103(a) (2), 104(b), 201 (7). In other contexts, "genetic test" has been defined more broadly. See, e.g., SHAPIRO, supra note 54, at 745 ("The earliest forms of genetic diagnosis, still frequendy practiced, were based on observation of an individual's clinical findings or constellation of anomalies and on assessment of the family history.").
181. See Genetic Information Nondiscrimination Act § 101 (b) (amending Employee Retirement Income Security Act (ERISA)); id. § 102 (a) (amending Public Health Service Act (PHSA)); id. § 103 (b) (amending Internal Revenue Code (IRC)); id. § 104 (a) (amending Social Security Act (SSA)) (adding provisions stating that insurers "shall not request or require an individual or a family member of such individual to undergo a genetic test"); id. § 202 (b) (providing that an employer may not "request, require, or purchase genetic information with respect to an employee or a family member of the employee").
182. See supra note 97.
183. See supra note 97. Notably, § 202 (b) includes six exceptions. Genetic Information Nondiscrimination Act §§ 202 (b) (l) - (b) (6). The other sections of Title II have similar prohibitions. See id. §§ 203 (b), § 204 (b), 2(b) includes six exceptions. Genetic Information Nondiscrimination Act §§ 202 (b) (l) - (b) (6). The other sections of Title II have similar prohibitions. See id. §§ 203 (b), § 204 (b), 2), 205 (b).
184. See Mark A. Rothstein, Legal Conceptions of Equality in the Genomic Age, 25 LAW & INEQ. 429, 456 (2007) (describing genetic nondiscrimination and genetic privacy laws as "genome-blind").
185. I am indebted to Samuel Bray's work on "power rules" for this reading of GINA. See Samuel Bray, Power Rules, 110 COLUM. L. REV. 1172, 1181 (2010) (describing Title I of GINA as a "power-decreasing rule").
186. Id.
187. See Genetic Information Nondiscrimination Act § 2 (2).
188. The inheritability and perceived immutability of genetic information provided a popular point of comparison. "People do not get to choose their own genes, nor can they change the genes they have been given. This is a civil rights issue as much as are race and gender discrimination. To base judgment on that which is inherited and immutable is simply wrong." Monique K. Mansoura & Frances S. Collins, Medical Implications of the Genetic Revolution, 1 J. HEALTH CARE L. & POL'Y 329, 351 (1998);
189. see also Protecting Workers from Genetic Discrimination, supra note 25, at 42 ("The reasons for making genetic privacy part of our broader discrimination protections were clear to us. First, we believe that a person's genetic profile should be treated the same as other innate human characteristics such as one's race, gender, national origin, sexual orientation, age or physical abilities. Simply stated, a person's genetic profile is as natural and as inseparable from who they are as any other physical trait or attribute." (statement of Harriet Pearson, Chief Privacy Officer, IBM Corp.));
190. Christine Formas Norris, Note, The Genetic Information Nondiscrimination Act of 2008: History, Successes, and Future Considerations, 7 U. MD. LJ. RACE, RELIGION, GENDER & CLASS 192, 195 (2007) ("[O]ur genetic profiles are immutable characteristics, because much like race and gender, our genes are inherited and unalterable.").
191. See, e.g., Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 DUKE L. J. 365, 371-72 ("Racism and sexism are interlocking, mutually-reinforcing components of a system of dominance rooted in patriarchy.");
192. Devon W. Carbado & Mitu Gulati, Working Identity, 85 CORNELL L. REV. 1259, 1262 (2000) (exploring how outsider groups, such as women and minorities, "are often likely to perceive themselves as subject to negative stereotypes... [and] feel the need to do significant amounts of 'extra' identity work to counter those stereotypes");
193. Camille Gear Rich, Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future of Title VII, 79 N. Y. U. L. REV. 1134, 1159 (2004) (arguing that courts should "abandon the current definitions of race and ethnicity under Title VII that exempt from protection 'voluntary' aspects of racial and ethnic identities").
194. See, e.g., Katharine T. Bartlett, Only Girls Wear Barrettes: Dress and Appearance Standards, Community Norms, and Workplace Equality, 92 MICH. L. REV. 2541, 2544-45 (1994) (arguing that community norms are too discriminatory, "to provide a satisfactory benchmark for defining workplace equality");
195. Ann C. McGinley, Creating Masculine Identities: Bullying and Harassment "Because of Sex", 79 U. COLO. L. REV. 1151 (2008) (discussing "gender norms" in the context of workplace harassment);
196. Janie Allison Sitton, Introduction, 7 WM. & MARY J. WOMEN & L. 1, 3 (2000) (concluding that gender is fixed in the workplace, and "that harassing behavior at work is often rooted in perceptions of gender difference").
197. See, e.g., Laura L. Rovner, Disability, Equality, and Identity, 55 ALA. L. REV. 1043 (2004) (noting that modern disability theory is moving towards the view of disability as a socially constructed condition);
198. Michael Ashley Stein, Foreword: Disability and Identity, 44 WM. & MARY L. REV. 907 (2003) (discussing perceptions of disability).
199. See Diver & Cohen, supra note 16, at 1476-77. Stigma is the notion that a particular characteristic is "deeply discrediting" within a particular social context. ERVING GOFFMAN, STIGMA 3 (1986). It is an important aspect in the creation and maintenance of group subjugation that the antisubordination principle aims to eradicate. With no recognized social group and no widely recognized history of discrimination, stigma has not yet attached to genetic information as a category. That is not to say, however, that there is no stigma attached to certain genetically based health conditions.
200. See Klitzman, supra note 18, at 81 (describing the potential stigma associated with Huntington's).
201. See infra notes 118-120 and accompanying text.
202. See, e.g., Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713, 728-29 (1985) (discussing the means by which membership in a minority group is perceived).
203. See Diver & Cohen, supra note 16;
204. supra note 16 and accompanying text.
205. Some researchers are currently exploring the formation of genetic identity amongst individuals at risk for certain genetic conditions. See Robert Klitzman, "Am I My Genes?": Questions of Identity Among Individuals Confronting Genetic Disease, 11 GENETIC MED. 880 (2009). However, the concept of genetic identity remains a relatively new phenomenon and not yet widely recognized by society at large.
206. See Roberts, supra note 2, at 457-71.
207. Pub. L. No. 88-352, 78 Stat. 241
208. (codified as amended at 42 U. S. C. §§ 2000e-2000e-17 (2006)).
209. Pub. L. No. 101-336, 104 Stat. 327
210. (codified as amended at 42 U. S. C. §§ 12101-12213 (2006)).
211. See Roberts, supra note 2, at 457-70
212. See generally id. (arguing that GINA is the first preemptive antidiscrimination statute in American history); see also Rothenberg &
213. Terry, supra note 19, at 197 (arguing in favor of enacting federal legislation before genetic-information discriminadon takes hold);
214. cf. Cass R. Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection, 55 U. CHI. L. REV. 1161, 1163 (1988) (characterizing the Due Process Clause as backward-looking and the Equal Protecdon Clause as forward-looking).
215. See Norris, supra note 104, at 198 ("Unlike race, ethnicity, religion, or gender, genetic predispositions are not readily apparent without laboratory genetic testing, physical medical examinations, or the disclosure of family medical histories.");
216. see also Diver & Cohen, supra note 16, at 1445 ("One obviously cannot base discrimination on a person's genetic profile unless one has first obtained information about that profile.");
217. David F. Pardett, Misuse of Genetic Information: The Common Law and Professionals' Liability, 42 WASHBURN L. J. 489, 490-91 (2003) (noting medical science's increasing ability to perform genetic testing).
218. Family history is the notable exception here, as it is a type of genetic information that does not always require genetic testing. For example, a parent's developing cancer might indicate a child's genetic proclivity for developing cancer, even though neither party ever had a genetic test.
219. See Anita Silvers & Michael Ashley Stein, An Equality Paradigm for Preventing Genetic Discrimination, 55 VAND. L. REV. 1341, 1351 (2002) ("The first obvious line of defense is to evade genetic testing. If people adopt this strategy, as they are likely to do, they will impede the realization of genomics' contributions to both personal welfare and social good."); see also Kim, supra note 6, at 698 (stating that, with regard to genetic information, "unlike race or sex, the traits that would be the basis for discrimination are not readily detected through casual observation, and systematic discrimination cannot occur unless information about genetic characteristics becomes widely available").
220. See generally Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. MIAMI L. REV. 9 (2003) (providing detailed history of the development and application of two distinct antidiscrimination trends in American jurisprudence);
221. Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 HARV. L. REV. 1470 (2004) (contextualizing the development of competing theories on equal protection law).
222. When used here, "antidiscrimination principle" does not exclusively refer to anticlassification or antidifferentiation norms as is sometimes true in the literature. See, e.g., Paul Brest, In Defense of the Antidiscrimination Principle, 90 HARV. L. REV. 1, 1 (1976);
223. Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107, 108 (1976);
224. Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 CALIF. L. REV. 1, 8-9 (2000);
225. Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV. 2410, 2440-41 (1994). Instead, the term is all-encompassing, referring to the goals undergirding antidiscrimination law. See Balkin &
226. Siegel, supra note 121, at 10 ("In hindsight, [Fiss's] choice of words was quite unfortunate, because there is no particular reason to think that antidiscrimination law or the principle of antidiscrimination is primarily concerned with classification or differentiation as opposed to subordination and the denial of equal citizenship. Both antisubordination and anticlassification might be understood as possible ways of fleshing out the meaning of the antidiscrimination principle, and thus as candidates for the 'true' principle underlying antidiscrimination law.").
227. The antisubordination principle has been the subject of numerous interpretations and alternate nomenclatures. For example, Owen Fiss's original incarnation of the antisubordination principle was named the "group-disadvantaging principle", which he defined as requiring that laws not aggravate or perpetuate "the subordinate status of a specially disadvantaged group. " Fiss, supra note 122, at 157. Other variants include the "antisubjugation" principle
228. see LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1515 (2d ed. 1988) (arguing in favor of an "antisubjugation principle, which aims to break down legally created or legally reinforced systems of subordination that treat some people as second-class citizens"), the "equal citizenship" principle
229. see Kenneth L. Karst, Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 46 (1977) (stating that "[t]he central concern of the equal citizenship principle is equality of personal status in the society"), and the "antidomination" principle
230. see Christine A. Littleton, Reconstructing Sexual Equality, in FEMINIST LEGAL THEORY 39 (Katharine T. Bartlett & Rosanne Kennedy eds., 1991) (asserting that Catharine A. MacKinnon's work advocates "[t]he reconceptualization of equality as antidomination").
231. Cass Sunstein has developed a related concept, the "anticaste" principle. See Sunstein, supra note 122, at 2413 (noting similarities to theories advanced by Tribe and Fiss but arguing that the anticaste principle differs in its account of equality and its application to legislative-opposed to judicial-enforcement). As defined by Sunstein, the anticaste principle has two requirements: the defining trait must be (1) visible and (2) morally irrelevant. Id. at 2411-12. Genetic information-as was discussed-is neither highly visible, as it requires voluntary medical testing to be revealed, nor morally irrelevant, as it can result in eventual physical and functional-as well as social-disadvantage. Thus, because of these prerequisites, members of a genetic underclass may never be the beneficiaries of this particular version of the antisubordination principle.
232. See Siegel, supra note 121, at 1472-73 (explaining the antisubordination principle as "the conviction that it is wrong for the state to engage in practices that enforce the inferior social status of historically oppressed groups"). Additionally, the anticaste principle differs slightly from other interpretations of the antisubordination principle in that it relies on actual numerical disparities in certain tangible social goods like education, employment, and income, not simply historical disadvantage or subordinated social status. See Sunstein, supra note 122, at 2443-44. For example, a group may be disadvantaged and experience social subordination in the sense that it is an object of discrimination but-because its social welfare status is elevated or comparable to that of out-group members-not be considered members of a lower caste. See id. Such a group could potentially benefit from an antisubordination regime but not an anticaste one.
233. The anticlassification principle is also known as the "antidiscrimination" principle, see supra note 122; see also Paul Brest, supra note 122, at 1 (defining the antidiscrimination principle as "the general principle disfavoring classifications and other decisions and practices that depend on the race (or ethnic origin) [or other forbidden traits] of the parties affected"), or the "antidifferentiation" principle, see Sunstein, supra note 122, at 2439-40 (asserting that "[t]he anticaste principle was transformed into an antidifferentiation principle", shifting the focus from "the elimination of second-class citizenship" to "whether people who were similarly situated had been treated similarly").
234. See Balkin & Siegel, supra note 121, at 10 (defining the anticlassification principle as the idea that "the government may not classify people either overtly or surreptitiously on the basis of a forbidden category: for example, their race").
235. Conversely, antisubordination may embrace the functional equal treatment, equal outcome, and equal access-as well as formal equal treatment-models of equality. I borrow these four particular conceptualizations of equality from Susan Sturm. See Susan Sturm, Equality and Inequality: Legal Aspects, in INTERNATIONAL ENCYCLOPEDIA OF SOCIAL AND BEHAVIORAL SCIENCES 4717, 4717-22 (2001). Formal equal treatment forbids explicit and intended differential treatment. Functional equal treatment attempts to account for inequality that is the result of intended, as well as unintended, bias. Equal outcome examines material differences based on group membership, such as differences in income and education level. Equal access targets structural inequalities that create differential treatment in formally equal policies. As an example, take an employer's policy on tardiness and its effect on sex discrimination. Under a formal equal treatment model, the lateness policy would be unequal only if it contains explicit provisions treating men and women differendy on the basis of sex. Under a functional equal treatment model, even if the policy is neutral on its face, if the employer enforces it differendy because supervisors assume that women tend to be late more often than men because of a belief that women are frequendy responsible for taking their children to school, the policy would not be equal. Under an equal outcome model, if women tend to be promoted less frequendy than men as a result of the lateness policy, it would be unequal. Finally, if the employer's assumption was correct and women are more likely to be responsible for taking their children to school, under equal access, the employer might need to make some kind of accommodation so as not to disadvantage its female workers.
236. Siegel explains the two models in terms of group versus individualized accounts of equality. Siegel, supra note 121, at 1472-73 ("For many, the belief that anticlassification commitments are fundamental entails the view that our tradition embraces a particular conception of equality, one that is committed to individuals rather than to groups.... The fundamentality of the anticlassification principle thus explains various features of our equal protection tradition, foremost among them its commitment to protect individuals against all forms of racial classification, including 'benign' or 'reverse' discrimination. ").
237. Justice Thomas articulated the Court's preference for an individual-oriented account of equality over a group-oriented one in its interpretation of Equal Protection: At the heart of this interpretation of the Equal Protection Clause lies the principle that the government must treat citizens as individuals, and not as members of racial, ethnic, or religious groups. It is for this reason that we must subject all racial classifications to the strictest of scrutiny, which (aside from two decisions rendered in the midst of wartime) has proven automatically fatal.
238. Missouri v. Jenkins, 515 U. S. 70, 120-21 (1995) (Thomas, J., concurring) (citations omitted).
239. See Siegel, supra note 121, at 1477;
240. see also Balkin & Siegel, supranote 121, at 13 ("[A] ntisubordination values have played and continue to play a key role in shaping what the anticlassification principle means in practice."). Antisubordination is not, however, the only underlying norm that may motivate anticlassification protection.
241. See Balkin & Siegel, supra note 121, at 28 ("[Amplication of the anticlassification principle often depends on judgments concerning the presence, absence, or degree of status-harm-the very sorts of judgments with which the antisubordination principle is concerned.").
242. Both antisubordination and anticlassification prohibit intentional discrimination that could lead to subjugated group status. However, antisubordination also prohibits facially neutral policies that could lead to subjugated status, while anticlassification does not. Additionally, anticlassification prohibits intentional discrimination that does not have an adverse impact, such as affirmative action.
243. Because genetic-information discrimination is not occurring on a widespread basis and no group has yet been identified as genetically disadvantaged, the antisubordination principle as applied to genetic information could only prevent the creation of a subordinated class rather than eliminate existing subjugation.
244. See supra notes 121-122 and accompanying text.
245. See Sunstein, supra note 122, at 2433 ("[A] history of discrimination is not a necessary condition for status as a lower caste, though in practice such a history is highly probable.").
246. See Bruce G. Link & Jo C. Phelan, Conceptualizing Stigma, 27 ANN. REV. SOC. 363, 367-75 (2001) (arguing that stigma forms in four stages: (1) distinguishing and labeling personal differences, (2) creating stereotypes by linking certain labeled people to undesirable traits, (3) placing labeled people into distinct categories, and (4) causing labeled people to experience status loss and discrimination based on their label). Moreover, animus or an intent to discriminate need not be present. Status hierarchies may result when small preferences accrue over time to result in subjugation.
247. See Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 COLUM. L. REV. 458, 469 (2001) ("[B]ehavior that appears gender neutral, when considered in isolation, may actually produce gender bias when connected to broader exclusionary patterns."). (Pubitemid 33651459)
248. See Louise McIntosh Slaughter, Genetic Testing and Discrimination: How Private Is Your Information?, 17 STAN. L. & POL'Y REV. 67, 69 (2006) ("No human being has a perfect set of genes. In fact, every one of us is estimated to be genetically predisposed to between five and fifty serious disorders. Every person is therefore a potential victim of genetic discrimination. ").
249. See Alexander Morgan Capron, Which Ills to Bear?: Reevaluating the "Threat" of Modern Genetics, 39 EMORY L. J. 665, 690 (1990) (noting that while all people have potentially fatal genes, those who carry the genes for which genetic screens are first developed will suffer disproportionately).
250. See Link & Phelan, supra note 136, at 367-75.
251. See Kate McCormick, TheEvolution of Workplace Diversity, Hous. Law.,
252. See Bruce T. Lahn & Lanny Ebenstein, Let's Celebrate Human Genetic Diversity, 461 NATURE 726, 727 (2009) (arguing that we should value genetic diversity along with cultural diversity).
253. Section 202 (a) (1) of GINA provides that an employer cannot "fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee." 42 U. S. C. § 2000ff-l (a) (1) (Supp. II 2008). While this provision has an antisubordination tone, it forbids only intentional negative use of genetic information. Thus, § 202 (a) (1) does not encompass certain fundamental elements traditionally associated with the antisubordination principle-affirmative action and disparate impact. Id.
254. Title II prohibits classification on the basis of genetic information. See id. § 2000ff-l (a) (2) (providing that employers may not "limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee");
255. id. § 2000ff-2 (a) (2) (similarly regulating employment agencies);
256. id. §2000ff-3 (a) (2) (similarly regulating labor organizations);
257. id. § 2000ff-4 (a) (2) (similarly regulating on-thejob training programs). A similar provision in Title VII laid the groundwork for that statute's anticlassification interpretation.
258. See 42 U. S. C. § 2000e-2 (a) - (d) (2006).
259. See Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233, §§ 101(a), 102(a), (b), 103(a), 122 Stat. 881, 883, 888, 892, 896
260. (codified in scattered sections of 26, 29, and 42 U. S. C).
261. As of 2014, when the Patient Protection and Accountable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), goes into full effect, many of GINA's insurance provisions will become obsolete.
262. See Furrow et al., supra note 15.
263. See 42 U. S. C. § 2000e-2 (k) (l) (A) (i);
264. see also Griggs v. Duke Power Co., 401 U. S. 424, 431 (1971) ("[Tide VII] proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. ").
265. See BLACK'S LAW DICTIONARY 538 (9th ed. 2009) (defining "disparate impact" as "[t]he adverse effect of a facially neutral practice (esp. an employment practice) that nonetheless discriminates against persons because of their race, sex, national origin, age, or disability and that is not justified by business necessity").
266. While disparate impact claims traditionally have only been employed on behalf of historically subordinated groups, this tenet of antidiscrimination law may in fact be changing. See generally Charles A. Sullivan, The World Turned Upside Down?: Disparate Impact Claims by White Males, 98 NW. U. L. REV. 1505 (2004) (discussing the historical development of Tide VII disparate impact claims and rejecting the argument for application of the doctrine to white males).
267. Genetic Information Nondiscrimination Act, 42 U. S. C. 2000ff-7 (a) (Supp. II. 2008) ("Notwithstanding any other provision of this Act, 'disparate impact', as that term is used in section 703 (k) of the Civil Rights Act of 1964
268. (42 U. S. C. 200e-2 (k)), on the basis of genetic information does not establish a cause of action under this Act.").
269. See id. § 2000ff-7 (b) ("On the date that is 6 years after the date of enactment of this Act, there shall be established a commission, to be known as the Genetic Nondiscrimination Study Commission (referred to in this section as the 'Commission') to review the developing science of genetics and to make recommendations to Congress regarding whether to provide a disparate impact cause of action under this Act.").
270. The Patient Protection and Affordable Care Act (PPACA) includes provisions designed to eliminate health-status discrimination in health insurance. See, e.g., Patient Protection and Affordable Care Act of 2010, Pub. L. 111-148, § 1201, 124 Stat. 119, 154 (prohibiting discrimination based on preexisting condition or health status, prohibiting discrimination against individual participants based on health status, and banning health insurers in the individual and group markets from setting "discriminatory premium rates");
271. see also Jessica L. Roberts, "Healthism": A Critique of the Antidiscrimination Approach to Health Insurance and American Health-Care Reform (Feb. 18, 2011) (unpublished manuscript), available at http://papers.ssm.com/ sol3/papers.cfm?abstract-id=l 757987 (arguing that Congress took an antidiscrimination approach to reforming healdi care). Thus, manifested genetic health conditions will enjoy antidiscrimination protection in the context of health insurance.
272. See supra note 94.
273. See Rothstein, supra note 2, at 176 ("This absence of protection for affected individuals is not a loophole or oversight.").
274. See Email from Pam Kennedy to Amanda Sarata (Aug. 20, 2004, 6:27 PM), reproduced in PUBLIC PERSPECTIVES, supra note 21, at 47 (describing her son's struggles with ectodermal dysplasia as an example of genetic-information discrimination).
275. Woody Guthrie died of Huntington's disease. His son, Arlo Guthrie, although having a fifty percent chance of developing the disease, has publically stated he does not want to be tested. See Don't Permit Abuses of Genetic Testing, USA TODAY, July 19, 1990, at 10A.
276. See 42 U. S. C. § 12112 (a) (2006).
277. Id. § 12102 (2).
278. Id. If an impairment is not substantially limiting, it does not constitute a disability. See infra notes 158-159 and accompanying text.
279. See Hirsch v. Nat'l Mall & Serv., Inc., 989 F. Supp. 977, 980-82 (N. D. 111. 1997) (denying posthumously an ADA claim because the claimant failed to establish that his fatal non-Hodgkins lymphoma was substantially limiting);
280. see also Ellison v. Software Spectrum, Inc., 85 F.3d 187, 191 (5th Cir. 1996) (holding that a plaintiff with breast cancer was not substantially limited in the major life activity of working despite the "nausea, fatigue, swelling, inflammation, and pain she experienced as a result of the treatment and the medication").
281. See Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 884 (6th Cir. 1996) ("Although both arthritis and MS can be disabling in some instances, they were not so substantially limiting in this case.").
282. See ADA Amendments Act of 2008, 42 U. S. C. § 12102 (4) (A) (2006 & Supp. II 2008) (rejecting the courts' narrow definition of disability and stating that "[t]he definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this Act").
283. See Alex B. Long, Introducing the New and Improved Americans with Disabilities Act: Assessing the ADA Amendments Act of 2008, 103 NW. U. L. REV. COLLOQUY 217, 219-20 (2008), http://www.law.northwestern. edu/lawreview/ colloquy/2008/44/LRColI200 8n44Long.pdf.
284. Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, as Amended, 74 Fed. Reg. 48, 431, 48, 440 (proposed Sept. 23, 2009) (to be codified at 29 C. F. R. pt. 1630). The regulations also provide a list of conditions that should consistently constitute a disability, such as autism, cancer, and cerebral palsy, as well as examples of conditions that may be substantially limiting for some-but not all-people, like asthma, high blood pressure, learning disabilities, and carpal tunnel syndrome. Id. at 48, 441-42.
285. See supra note 156 and accompanying text.
286. 42 U. S. C. § 12102 (3) (A).
287. Id.§ 12201 (h).
288. See Klitzman, supra note 18, at 72 (noting that individuals with mild symptoms are afraid that neither GINA nor the ADA will protect them);
289. see also Rothstein, supra note 6, at 839 (noting the possible gap in coverage between GINA and ADA);
290. see also Maurice Wexler et al., The Law of Employment Discrimination from 1985-2010, 25 A. B. A. J. LAB. & EMP. L. 349 (2010) (describing the interplay of the ADA and GINA).
291. See supra note 150.
292. The EEOC even hints at the possibility of dual protection in its regulations. See Regulations Under the Genetic Infornmation Nondiscrimination Act of 2008, 75 Fed. Reg. 68, 912, 68, 929 (Nov. 9, 2010) (to be codified at 29 C. F. R. pt. 1635.11).
293. See Lahn & Ebenstein, supra note 141, at 728 ("[N]o two people's DNA is the same, except identical twins.").
294. See Capron, supra note 138, at 690 (noting that while all people have potentially fatal genes, those who carry the genes for which genetic screens are first developed will suffer disproportionately).
295. Like the idea of "genetic disadvantage", what constitutes disability is based in the conceptualization of normalcy. See Mary Crossley, The Disability Kaleidoscope, 74 NOTRE DAME L. REV. 621, 656 (1999).
296. See Rovner, supra note 107, at 1057-58;
297. see also Jessica L. Roberts, Note, An Area of Refuge: Due Process Analysis and Emergency Evacuation for People with Disabilities, 13 VA. J. SOC. POL'Y & L. 127, 137-40 (2005) (arguing that the equal protection demanded by the Fourteenth Amendment does not do enough to alleviate the difficulties faced by disabled people).
298. See Rovner, supra note 107, at 1044.
299. Arguably, allowing an accommodation for employees with a genetic predisposition disadvantages the employees without that genetic predisposition. According to this line of reasoning, providing a more flexible work schedule to employees with a heightened genetic proclivity for developing carpal tunnel would disadvantage employees without that genetic variant. This position would be akin to the plaintiffs successful argument in Ricci v. DeStefano, 129 S. Ct. 2658, 2687-89 (2009), holding that an employer who rejected test results that would have formed the basis of disparate impact claim for its employees of color in so doing discriminated against its white employees. However, the employer could offer the accommodation universally on another basis, such as work/life balance.
300. Similarly, Robert Klitzman suggests accommodations for individuals at risk for alpha-1 antitrypsin deficiency, such as limiting possible exposures to environmental irritants. See Klitzman, supra note 18, at 73.
301. It should be noted that simply allowing the positive use of genetic information unchecked could lead to systemic advantage on the basis of genetic information, creating a genetic uberclass. While claimants might at some point be able to use disparate impact actions to challenge blanket preferences for uberclass members as unintended discrimination against nonmembers, those claimants would have to prove that the positive treatment was creating systematic disadvantage. Thus, it is important to limit that positive differential treatment to accommodation and diversity initiatives.
302. See Steve Connor, Newly Discovered Height Gene Has Disease Link, INDEPENDENT, Sept. 3, 2007, at 12, available at http://www.independent.co.uk/ life-style/healtfi-andfamilies/health-news/newly-discovered-height-gene-has- disease-link-401275.html (quoting Mike Weedon).
303. A variety of jobs involve height requirements, including automobile manufacturers, fire fighters, police officers, truckers, and pilots. Litigants have challenged these requirements. See, e.g., Boyd v. Ozark Air Lines, Inc., 568 F.2d 50 (8th Cir. 1977) (pilots);
304. Davis v. Los Angeles, 566 F.2d 1334 (9th Cir. 1977) (fire fighters)
305. vacated, 440 U. S. 625 (1979);
306. United States v. Chicago, 411 F. Supp. 218 (N. D. 111. 1976) (police officers)
307. affd in part, rev'd in part, 549 F.2d 415 (7th Cir. 1977);
308. Meadows v. Ford Motor Co., 62 F. R. D. 98 (W. D. Ky. 1973) (automobile manufacturers)
309. modified, 510 F.2d 939 (6th Cir. 1975);
310. United States v. Lee Way Motor Freight, Inc., No. CIV-72-445, 1973 WL 278 (W. D. Okla. Dec. 27, 1973) (truckers).
311. This scenario is more akin to a Tide VII disparate treatment claim, in which the employer designs a facially neutral policy as a pretext for discrimination, than a claim for disparate impact, which requires no intent. See McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802 (1973).
312. See Sturm, supra note 127, at 4719-20 (describing "functional equality of treatment").
313. See supra note 49 and accompanying text; see also Klitzman, supra note 18, at 73 ("If the partners knew about this, it might unconsciously affect them: should we make this guy partner? They wouldn't say it. They would just think it to themselves, 'I'm gonna vote no', and raise their hand when the 'no' vote comes along.").
314. See Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161, 1164 (1995) (arguing that Title VII combats intentional discrimination, but not subtie, unconscious biases).
315. See supra note 166 and accompanying text.
316. Theorists have proposed that discourse is generative and the very process of classification creates and reifies difference. See MICHEL FOUCAULT, THE ORDER OF THINGS (1966);
317. see also JUDITH BUTLER, GENDER TROUBLE 180-90 (1999). Thus, merely acknowledging the possibility of a genetic underclass could lead to genetic subordination.
318. See, e.g., McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273, 283 (1976) (applying Title VII to all races);
319. Yeary v. Goodwill Indus.-Knoxville, Inc., 107 F.3d 443, 446 (6th Cir. 1997) (applying Title VII to a man).
320. See supra note 145 and accompanying text.
321. See Griggs v. Duke Power Co., 401 U. S. 424, 431 (1971).
322. See 42 U. S. C. § 2000e-2(k) (l) (A) (ii), 2 (k) (l) (C) (2006).
323. See supra note 149 and accompanying text. Importantly, simply adding disparate impact actions as proposed by Congress would only affect GINA's employment provisions, as there are no disparate impact claims for discrimination in health insurance.
324. Mark Rothstein also endorses an approach to genetic-information discrimination based on the protection of disability. See Rothstein, supra note 100, at 459-60. Rothstein, however, uses the Individuals with Disabilities Education Act, not the ADA as his model. See id. He argues that adopting a difference-oriented approach could provide better protection for genetic information than "genome-blind" policies that attempt to mask the relevance of genetic difference. See id. at 462-63.
325. See 42 U. S. C. § 12101 (a) (2) (Supp. II 2008) (finding that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem"); id. § 12101 (a) (6) (finding that "people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally").
326. Id. § 12112 (a).
327. Id. §12111 (8).
328. See id. § 12113 (b) ("The term 'qualification standards' may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.");
329. see also Chevron U. S. A., Inc. v. Echazabal, 536 U. S. 73, 86-87 (2002) (extending the direct threat defense to the individual with the disability).
330. See 42 U. S. C. § 12102 (1) (B) (including the record of a disabling impairment in the definition of disability).
331. See id.§ 12102 (1) (C) (including being "regarded as" having a disabling impairment in the definition of disability).
332. Early on in the ADA's history, the EEOC noted that "[o]nly persons who actually have a substantially limiting impairment are entitled to reasonable accommodation under the ADA.... Persons who are regarded as having a substantially limiting impairment are not entided to reasonable accommodation. " EQUAL EMP'T OPPORTUNITY COMM'N, ADA CASE STUDY TRAINING MANUAL, CASE STUDY 1, at 6 (1996).
333. See 42 U. S. C. § 12112 (b) (3) (A) (prohibiting practices "that have the effect of discrimination on the basis of disability").
334. For an in-depth analysis of GINA's potential impact on sports employers, see Evans, supra note 6.
335. See Denise Gellene, Genetic Link to Cancer Found, LA. TIMES, April 3, 2008, at A12.
336. The study shows that smokers generally have a fifteen percent chance of developing lung cancer. See id. While smokers with one copy of the variation have roughly the same probability of cancer as smokers without the variation, smokers with two copies of the genetic variation have an increased risk: they have a twenty-five percent chance of developing cancer. Id.
337. Title VII does not bar discrimination based on personal animus. See St. Mary's Honor Ctr. v. Hicks, 509 U. S. 502, 510-11 (1993). Thus, an employer can escape liability by proving that the adverse action was the result of personal animus, not discrimination.
338. Combining different kinds of statutory protections can inform how the Supreme Court interprets a law. See, e.g., McKennon v. Nashville Banner Publ. Co., 513 U. S. 352, 357 (1995) (holding that courts have treated the ADEA as a hybrid of Tide VII and the Fair Labor Standards Act of 1938).
339. Kim, supra note 6, at 703 ("[S] imply prohibiting discrimination alone is unlikely to be effective in preventing discrimination on the basis of genetic characteristics.").
340. Arguments could be made in favor of allowing positive differential treatment in health insurance as well. For example, health insurers could tailor coverage based on health needs (not potential cost). However, that proposal would also involve fundamental changes to the PPACA and is therefore outside the scope of this Article.
341. See Gautam Naik, A Baby, Please. Blond, Freckles-Hold the Colic, WALL ST. J., Feb. 12, 2009, at A10.
342. See, e.g., GENE PARTNER, http://www.genepartner.com (last visited Apr. 21, 2011) (offering matchmaking based on a DNA analysis).