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Genetic discrimination provisions in human rights legislation: Will Ontario be the first Canadian jurisdiction?

geneticInsurance companies may not like it, but Canada is on its way to including provisions in human rights legislation that prevents discrimination based on a person’s genetic characteristics. The issue is that a person can experience discrimination and harassment simply because of something that may be—something that has the potential of happening. Genetic test results are not absolute predictions: they simply indicate that a person has a higher likelihood of having a certain medical condition or disorder. Employers must be aware that human rights legislation is in the process of evolving to include provisions to prevent this type of discrimination, and this will apply in the workplace as well.

Although genetic tests can be helpful when making health decisions, they can also be easily misinterpreted and can cause people to jump to conclusions. In fact, according to the US National Library of Medicine, the result of genetic tests are not completely straightforward and they are challenging to interpret and explain. Healthcare professionals are required in order to understand the results. It states:

Depending on the purpose of the test, this result may confirm a diagnosis, indicate that a person is a carrier of a particular genetic mutation, identify an increased risk of developing a disease (such as cancer) in the future, or suggest a need for further testing. Because family members have some genetic material in common, a positive test result may also have implications for certain blood relatives of the person undergoing testing. It is important to note that a positive result of a predictive or presymptomatic genetic test usually cannot establish the exact risk of developing a disorder. Also, health professionals typically cannot use a positive test result to predict the course or severity of a condition.

Even though it is scientifically understood that there are no guarantees with genetic testing, but rather probabilities, some Canadians have had negative experiences and have faced discrimination because of the results of a genetic test.

Bill 30, Human Rights Code Amendment Act (Genetic Characteristics), 2016

Consequently, some jurisdictions have aimed to ameliorate the situation. Recently, in Ontario, Bill 30, Human Rights Code Amendment Act (Genetic Characteristics), 2016, was introduced into the legislature and received first reading on September 29, 2016. On November 3, 2016, Bill 30 received second reading and was sent to the Standing Committee on Justice Policy.

What does Bill 30 say? Essentially, it amends the Ontario Human Rights Code to include genetic characteristics as a prohibited ground of discrimination and harassment. Important for employers to note, every person has a right to equal treatment without discrimination because of genetic characteristics with respect to employment and membership in various types of organizations. This applies in cases where people refuse to undergo or disclose the results of genetic test, or authorize the disclosure of the results of a genetic test.

Under Bill 30, “genetic characteristics” is defined as “genetic traits of an individual, including traits that may cause or increase the risk to develop a disorder or disease”.

If passed, Bill 30 would come into force on Royal Assent.

Bill S–201, An Act to prohibit and prevent genetic discrimination

Bill 30 is not the only development that has occurred in Canada. On December 8, 2015, private members’ Bill S–201, An Act to prohibit and prevent genetic discrimination, was introduced into the Senate receiving first reading. It received second reading on January 27, 2016 and was referred to the Standing Senate Committee on Human Rights. A Committee Report was created proposing amendments, and there was consideration of the report on April 14, 2016. Bill S–201 passed with amendments on April 14, 2016. Subsequently, it was introduced into the House of Commons and received first reading on May 3, 2016. It received second reading and was referred to the Standing Committee on Justice and Human Rights on December 26, 2016. On December 5, 2016, the report was created proposing an amendment, and the last events regarding Bill S–201 occurred on February 14, 2017, whereby there was a reporting stage.

What does Bill S-201 say? Essentially, the Genetic Non–Discrimination Act would prohibit any person from requiring an individual to undergo a genetic test or disclose the results of a genetic test as a condition of providing goods or services to, entering into or continuing a contract or agreement with, or offering specific conditions in a contract or agreement with, the individual. This would include employment. However, exceptions are provided for health care practitioners and researchers.

Specific to federally regulated employment, amendments would modify the Canada Labour Code and the Canadian Human Rights Act to prohibit discrimination on the ground of genetic characteristics.

That is, under Bill S-201, “genetic test” would mean “a test that analyzes DNA, RNA or chromosomes for purposes such as the prediction of disease or vertical transmission risks, or monitoring, diagnosis or prognosis”. Also, “disclose” would include authorizing disclosure. A “health care practitioner” would mean “a person lawfully entitled under the law of a province to provide health services in the place in which the services are provided by that person”.

There would be stiff penalties for requiring a genetic test, disclosing the results of a genetic test, or to collecting, using, or disclosing the results of a genetic test of a person without that person’s written consent. In fact, such a person would be guilty of an offence and would be liable: on conviction on indictment, to a fine not exceeding $1,000,000 or to imprisonment for a term not exceeding five years, or to both; or on summary conviction, to a fine not exceeding $300,000 or to imprisonment for a term not exceeding twelve months, or to both.

With respect to employment, there would be clear provisions stating that, “Every employee is entitled not to undergo or be required to undergo a genetic test” and “Every employee is entitled not to disclose or be required to disclose the results of a genetic test”.

Employers must note that they are not allowed to dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee, take any disciplinary action against or threaten to take any such action against an employee just because that employee refused a request by the employer to undergo a genetic test, refused to disclose the results of a genetic test, or because the employer based any of these disciplinary decisions on the results of a genetic test undergone by the employee.

Furthermore, third parties are not allowed to disclose to an employer that an employee has taken a genetic test, or the results of that genetic test, without the written consent of the employee. Employers are not allowed to collect or use the results of a genetic test without the written consent of the employee.

Employees who believe that the employer has contravened these provisions can make a complaint in writing (within 90 days after the date of knowing of the contravention) to the inspector under the Canada Labour Code.

If passed, the prohibited grounds of discrimination listed in the Canadian Human Rights Act, would now include: race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

Clarification is provided in that, “genetic characteristics” would include the refusal of a request to undergo a genetic test or to disclose, or authorize the disclosure of, the results of a genetic test, the discrimination shall be deemed to be on the ground of genetic characteristics.

If passed, the changes would come into force on Royal Assent.

For employers

As can be seen, laws are evolving to reflect current values in society, and employers must be aware that it is likely they will need to ensure that their workplaces are free from discrimination on the ground of genetic characteristics in the near future.

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015.Read more
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