Most employers are familiar with the prohibitions against discrimination that exist in human rights legislation throughout Canada.  At the centre of the legislative web are protections for employees with disabilities which includes the right to equal treatment in employment.

But what about employees who do not suffer from disabling conditions and are simply predisposed to serious, or life-threatening, conditions? Where do they fit into the legal framework? What protections, if any, do they have in the workplace? What rights, if any, do employers have to know about their genetic vulnerabilities? In short, how do genetic markers and family medical history impact the employment relationship?

These are questions that our human rights laws will be forced to grapple with, and the outcome of ongoing debate about “genetic discrimination” is likely to impact employers across the country. While hard and fast answers for are not yet entirely clear, employers should be aware of the differing viewpoints and potential ramifications.

What is “genetic discrimination”?

With advances in modern medicine, individuals are now able to undergo testing to identify specific genetic traits. This information may be used by an individual and healthcare providers to diagnose and treat genetic conditions or identify predispositions to genetic diseases. Although this knowledge can be invaluable, some people worry that access to such information comes at a hefty price.

“Genetic discrimination” occurs when an individual suffers adverse job-related consequence in the workplace or elsewhere because of their actual or perceived genetic characteristics which may cause or increase their risk of developing certain disorders or diseases.

Canada does not currently have laws specifically addressing genetic discrimination, although provincial and federal privacy legislation prevent employers from accessing employees’ medical information without their consent, which may include genetic information.

Privacy legislation aside, the concept of genetic discrimination is largely unchartered territory in Canada, although that may not be the case for much longer.  In 2013, a private member’s bill was introduced in the Senate, with the hopes of enacting formal legislation surrounding genetic discrimination. If passed, Bill S-201 would protect employees from being discriminated against in the workplace on the basis of their genetic characteristics. Employees would also be protected from any differential treatment on the basis that they refused to undergo a genetic test or disclose the results of such tests.

Is this new legislation really necessary?

On the one hand, it is already open to the courts or tribunals to find that a genetic predisposition to certain medical conditions constitutes a “disability”, for which employees already have protection. Although not involving genetic characteristics per se, the Supreme Court of Canada has had the opportunity to determine whether conditions that have not manifested into a concrete physical ailment qualify as a “handicap” or “disability”, as those terms are used in the context of human rights legislation. In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), three individuals complained that they had been refused employment or dismissed from employment on the basis of medical conditions that did not actually impair their ability to work. Two of the individuals had undergone pre-employment medical exams that revealed spinal anomalies and the remaining individual suffered from asymptomatic Chron’s disease. In each case, the individuals were able to perform the normal duties of the relevant positions and had no functional limitations. The Supreme Court considered the meaning of the protected ground “handicap” in Quebec’s Charter of Human Rights and Freedoms and determined that a broad interpretation of the term, which includes ailments that do not give rise to any limitations or functional disability, was appropriate. When faced with allegations of genetic discrimination, human rights tribunals and courts may take the same approach, finding that the current protections are sufficient in the context of employment relationships.

On the other hand, questions arising out the use of genetic information raises unique challenges.  For example, it is unclear whether the mere possibility that an employee may become disabled in the future can or should be sufficient to trigger the protections of human rights legislation.  As such,  it may be valuable to both employers and employees to have a clearer understanding of what is and is not permissible when dealing with genetic characteristics in the workplace. In the case of existing physical and mental disabilities, employee protection is accompanied by employee responsibility – to provide up-to-date and sufficient medical information, to work with employers in crafting appropriate accommodations, and to accept that “ideal” solutions are unlikely to be provided.  Having a similar framework in place for genetic characteristics may allow employers to assess whether current employees and job candidates are suited to particular duties and positions, or whether certain tasks or environmental factors might exacerbate genetic predispositions to the detriment of the individual employee and the wider workplace. Armed with only the most relevant information, employers and employees may be able to determine whether accommodations are necessary or if the status quo is safe enough.

What should employers do in the meantime?

Until there is increased clarity in the law, whether through formal legislation, administrative policies or judicial decisions, it may be prudent for employers to tread carefully with respect to their employees’ genetic information. Where an employee does not demonstrate any functional limitations, it may be best to take a “wait and see” approach to future medical conditions and address disabilities if and when they manifest. However, if an employee volunteers information about his or her genetic traits because it may impact upon his or her ability to fulfil the job duties in the near future, employers may wish to treat such characteristics as a disability from the outset and determine whether accommodations may be necessary and appropriate.