Genetic discrimination provisions in human rights legislation: Will Ontario be the first Canadian jurisdiction?
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. 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.
When dealing with requests for accommodation, employee absenteeism and other medical circumstances, employers are routinely faced with the challenge of balancing employee privacy interests against the operational interests of the business when determining how much medical information and what kind of medical information employers can request. The analysis typically centres on the issue of what is reasonable in the circumstances, with diagnostic information being considered to be a clear delineation point as to what employers may request and not request. At the Canadian Senate in January, the question of the protection personal health information took on a new angle, centering around an individual’s right to privacy in respect of their personal genetic information.
The human rights landscape in Canada is shifting and society’s view of which personal characteristics deserve protection has changed dramatically. This is the result, in part, of technological advance. New technologies can offer great economic benefit but can simultaneously expose individuals to new forms of discrimination.
I first wrote about genetic discrimination in the workplace in August of 2004. At that time, I compared it to the movie Gattaca, in which a man tries to hide his “imperfect” genetic makeup so that he can enjoy a way of life and secure a job reserved for people without “flawed” genes. Although Gattaca is science fiction, the movie’s plot is not that remote from present-day reality.