A recent private member’s bill introduced by a Liberal MPP in the Ontario legislature would add “genetic characteristics” as a prohibited ground of discrimination to the Ontario Human Rights Code (the Code). As currently drafted, “genetic characteristics” would be defined as “genetic traits of an individual, including traits that may cause or increase the risk to develop a disorder or disease”.
The definition is extremely broad and could lead to some odd and frivolous human rights complaints. For example, an applicant for employment could conceivably claim that he/she was denied a job because his/her curly hair was a genetic trait. Or an employee could claim harassment based on a co-worker’s alleged “vexatious comment or conduct” about the employee’s hair colour.
To avoid this type of result, the bill will have to be studied and, hopefully, amended in committee so that its application is narrowed. One suggestion may very well be that the definition of “genetic characteristics” should be limited to genetic traits known to increase the risk of developing a disease (i.e., the second part of the current definition).
The bill also protects individuals from discrimination if they refuse to undergo or disclose the results of a genetic test. It seems that a much stronger case can be made for this type of provision to be included in the Code instead of a blanket prohibition on discrimination in employment based on “genetic characteristics” (or, at least, how it is currently defined). Indeed, this seems to be the real intent of the bill, given the MPP’s statement during first reading:
In essence, this bill would prevent employers and insurance companies from discriminating against Ontarians on the basis of genetic testing.
This will be an interesting development to watch. I expect that, because it is not a government bill, it will either gain little traction or be altered in the committee process.
Daniel Pugen
Ontario Employer Advisor
Published with permission from McCarthy Tétrault LLP
McCarthy Tétrault LLP
Latest posts by McCarthy Tétrault LLP (see all)
- Committee review completed for Bill 64: A step closer to a major reform of Quebec’s personal information protection regime - September 29, 2021
- The Bank for International Settlements issues paper on the regulation of digital payment services and e-money - August 23, 2021
- Emerging developments in ransomware - July 26, 2021
But if people knew their genetic susceptibility, why would they need insurance at all? They’d already know what to use their money for.
Insurance is a bet made under conditions of uncertainty. If you’re already certain, why would you want to make a bet and risk losing your premiums that you could use directly to fix your problem?
Genetic testing could mean the death of insurance as it tips the scale of certainty in favor of individuals instead of statistical groups.