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.
A current and contentious example of this is genetic discrimination. Genetic discrimination refers to the differential treatment of individuals as a result of ‘flaws’ in their biological coding, exposed through genetic testing. Genetic testing is a method of diagnosis; a person’s DNA is examined to confirm a suspected genetic condition or to determine the probability that a person will develop a genetic disorder.
Genetic testing has potentially broad application, being of particular interest to employers and benefit providers. One application may be for an employer to use the results of genetic testing to limit potential liability in the form of sickness leave. Thus, if an employer can learn the existence of, or pre-disposition to, potentially expensive genetic disorders in its workers, it could ensure that any afflicted individuals are dismissed ‘without cause’ prior to the manifestation of illness.
Such a proposition may sound far-fetched, however, in the United States the Genetic Information Non-Discrimination Act has already been introduced and Australia has laws in place expressly prohibiting genetic discrimination by employers. The reality remains that genetic testing offers a cost-effective and easy way to provide information which could allow for avoidance of significant potential liability.
At present, neither the provincial governments nor the federal government have legislated protections against genetic discrimination. Prior to the election call, however, federal Justice Minister Peter McKay announced plans for the federal government to introduce legislation to address the issue. Minister McKay made the announcement in Ottawa in June, stating that “it is important to have a framework in place to protect Canadians from genetic discrimination.”
The proposed legislative changes, if accepted, will include:
- An amendment to the Canadian Human Rights Act to widen the scope of the protected ground of ‘disability’ to incorporate discrimination on the basis of a pre-disposition to a disability, as inferred from genetic test results; and
- Amendments to both the Privacy Act and the Personal Information Protection and Electronic Documents Act to include genetic testing results as a type of personal information protected by these Acts.
Should such changes enter into law – which will hinge largely on the outcome of the October 19 election – it will offer protection to those employed by the federal government and those working in federally-regulated private industries, such as telecommunications and banking. The vast majority of the Canadian workforce, however, are not employed in these industries and are instead subject to provincial law. Therefore, absent changes at the provincial level, many employees will remain without protection.
Genetic discrimination is a novel issue, with which we are only just starting to grapple. It is of particular importance as the prevalence of expensive genetic conditions, such as Alzheimer’s disease, continue to increase. The degree to which genetic testing will ultimately be incorporated into the workplace remains to be seen.
- Be careful what you wish for: litigation lessons for employers - March 10, 2023
- ChatGPT and AI in the workplace - February 10, 2023
- Equity compensation and effective communication of adverse terms - January 13, 2023
[…] Genetic testing in the workplace: the new face of discrimination? (First Reference Talks) […]