Is there an emerging interest in knowing a person’s blood type, and not just for necessary medical purposes; but rather, for purposes that raise a host of issues, foremost among them privacy, e.g., predicting a person’s personality and behavioral tendencies, predisposition to disease, and developing dietary and lifestyle formulations suited to their blood type?
According to a recent BBC report there is such an interest, at least in Japan, where blood type is often used to determine dating compatibility, and by employers to gauge an applicant or employee’s general disposition, interpersonal relations, work style, and personality traits. The report states that some firms even organize work teams by blood type to try to ensure office harmony. For example, Type As are “dependable and self-sacrificing”, Type Bs “flamboyant free-thinkers, but selfish”, Type Os “decisive and confident”, and Type ABs “well balanced, clear-sighted and logical, but also high-maintenance and distant”.
And here in the United States, many Americans may have heard about the popular diet and lifestyle Eat Right For Your Type Program™, based solely on an individual’s blood type. This program is based on a purported biochemical and physiological uniqueness attached to blood type and also incorporates many of the beliefs embraced in Japan connecting blood type with behavior/personality.
Putting aside the legitimacy of the underlying “science”, employers in America should be aware that considering a person’s blood type could potentially trigger issues under the Genetic Information Nondiscrimination Act of 2008 (GINA). Title II of that law, which became effective in November 2009, generally prohibits employers from acquiring or using a person’s “genetic information” in a way which adversely affects the terms or conditions of employment. In March 2009, the EEOC proposed GINA implementing regulations which would add Part 1635 to Title 29 of the Code of Federal Regulations. The interim regulations are still at the rule proposal stage.
What is “Genetic Information” Under GINA?
Under Section 201 of GINA, genetic information is defined as information about “genetic tests” of an individual or of an individual’s family member, or the manifestation of a disease or disorder of an individual’s family member. “Genetic test”, in turn, is defined as any “analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes”. The statute specifically exempts any analysis of proteins or metabolites that does not detect genotypes, mutations, or chromosomal changes from the definition of “genetic test”.
Section 1635.3 of EEOC’s proposed GINA regulations and section-by-section analysis essentially reiterates the statutory definition of genetic information and genetic testing, but identifies certain analyses as being excluded from the definition of genetic tests:
- a medical examination that tests for the presence of a virus that is not composed of human DNA, RNA, chromosomes, proteins, or metabolites
- testing for the presence of alcohol or drugs. (However, a test to determine whether an individual has a genetic predisposition for alcoholism or drug use is a genetic test.)
- a test for infectious and communicable diseases that may be transmitted through food handling
- routine tests such as complete blood counts, cholesterol tests, and liver-function tests
Is Blood Typing “Genetic Information”?
Although the science of genetics is beyond the ken of this blog, the short answer may be “yes” because a person’s blood type is inherently genetic with distinct genotypes assigned to blood type. There are thirty recognized blood grouping systems, one of the most popular and utilized systems being the ABO blood typing (Type A, B, AB, O) and Rh factor system (Rh-positive or Rh-negative). ABO is the international gene symbol for the ABO gene with specific chromosomal mapping.
According to a geneticist at Stanford School of Medicine:
There are two main genes. One gene is for the ABO type. This gene codes for a protein that is on the surface of your blood cells. The different versions or alleles for the blood type protein are called A, B, and O. The other gene is for another protein on your blood cells called the Rh factor. The alleles are called plus (+) and minus (-). The two genes for blood type are inherited separately.
Although not definitive or exhaustive of the analysis, under the foregoing description of blood typing, it would appear that the ABO system would arguably constitute a non-excepted genetic test under GINA since it’s an “analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes”. In other words, it seems to go beyond a “routine blood test” of checking one’s cholesterol level, which the EEOC proposes to be excluded from GINA coverage.
Since the EEOC’s implementing regulations are still in the rule proposal stage, GINA issues like this one will likely present many gray areas requiring thoughtful analysis among legal counsel and possibly medical professionals. With respect to blood typing, however, until further guidance is issued by the EEOC, it would likely be in an employer’s best interest, first, to avoid eliciting or using the blood type information of applicants and employees and, second, to err on the side of including such information as potentially covered by GINA.