MLB’s Genetic Testing Program at the Plate Again

Baseball65The New York Times published a follow up piece to its story on Major League Baseball using genetic testing to confirm the reported ages of some young baseball aspirants. Last week’s GLR post examined MLB’s genetic testing program in the context of the Genetic Information Nondiscrimination Act (GINA) and has prompted further internal discussion here at GLR, with our own John Conley asking a few questions:

I guess MLB would say they’re not using genetic information to discriminate in the usual sense of screening out high-risk people, but just to verify that the prospect isn’t defrauding them about an essential datum — after some notorious cases of lying and producing false documents in both directions. And in the Bulls’ defense, they said they were spooked by numerous cases of basketball players dropping dead as a result of undiagnosed heart defects that seem to afflict the very tall. I guess they were also mindful of Reggie Lewis of the Celtics, who passed out, WAS diagnosed, shopped for a favorable opinion, then died playing. Does GINA allow any sort of defensive testing like this by employees whose work creates risk to particular categories of people? Or must the employer let the employees kill themselves if they wish?

There is clearly a good practical reason for the testing in both cases that John identifies, but neither testing to confirm identity (or otherwise prevent fraud, as in the case of MLB) or to prevent even potentially fatal medical conditions (as in the case of Eddy Curry) is explicitly permitted under GINA. In the case of MLB, the result will depend, in part, on how the EEOC interprets the following pair of GINA’s definitions (from Section 201 of GINA). Again, the interpretive issue is whether “genetic information”, which may not be used for making employment decisions, covers the kind of testing in the MLB matter.

(4) GENETIC INFORMATION —

(A) IN GENERAL — The term ‘genetic information’ means, with respect to any individual, information about —

(i) such individual’s genetic tests,

(ii) the genetic tests of family members of such individual, and

(iii) the manifestation of a disease or disorder in family members of such individual.

(B) INCLUSION OF GENETIC SERVICES AND PARTICIPATION IN GENETIC RESEARCH — Such term includes, with respect to any individual, any request for, or receipt of, genetic services, or participation in clinical research which includes genetic services, by such individual or any family member of such individual.

(C) EXCLUSIONS — The term ‘genetic information’ shall not include information about the sex or age of any individual.

(7) GENETIC TEST —

(A) IN GENERAL — The term ‘genetic test’ means an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes.

(B) EXCEPTIONS — The term ‘genetic test’ does not mean an analysis of proteins or metabolites that does not detect genotypes, mutations, or chromosomal changes.

The definition of “genetic information” sends us to the definition of “genetic test”, and for that term, it’s possible that the EEOC could determine that neither age nor identity represent “genotypes, mutations, or chromosomal changes” which might be sufficient to exclude the testing from GINA’s definition. The EEOC could reach the same result by deciding that the exclusion of “information about the sex or age of any individual” from the definition of “genetic information” encompasses genetic tests designed to ascertain an individual’s age, although that does not appear to me to be the intent of the exclusion. Neither of these outcomes seem particularly likely based on the plain language of GINA: the test at issue in the MLB matter is an “analysis of human DNA” and its results may be used, in some cases, to refuse to hire or otherwise discriminate against potential employees; seemingly the precise behavior that that GINA is intended to prevent. Still, there is sufficient ambiguity in the statutory language that the final analysis will depend in large part on how the EEOC, and courts, choose to interpret GINA.

The Bulls’ actions in Curry’s case, should a similar situation arise again, would seem to be clearly prohibited under GINA, and the team’s best option would likely be to simply assume the worst and not take the risk. (Which is what the Bulls ultimately decided by dumping Curry on the Knicks.)

Curry’s case is a very good example of a more general scenario that I suspect might pose a real problem once GINA takes effect. How will employers and employees handle situations in which an employer suspects that an employee is either suffering from, or at risk of, developing a medical condition with an identifiable genetic component? (In Curry’s case, it was the irregular heartbeat that created suspicion of HCM.) It would seem that, in most such cases, the employer will be forced to take action without a confirmatory genetic test. Depending on what data originally generated the employer’s suspicion, any action taken by the employer, even without a specifically-requested genetic test, could still qualify as unlawful discrimination under GINA. According to the EEOC’s draft regulations, requesting family medical history information (or even medical records likely to include family medical history) would also violate GINA.

Finally, lost in all of the concern over how employers are to comply with GINA is the dilemma faced by employees, especially potential employees. Although employers are prohibited from requesting genetic information, as well as from using it adversely should they somehow obtain it, there is nothing to prevent an employee or applicant from affirmatively disclosing the results of a genetic test to an employer. This dynamic has the potential to leave employees in a position where they feel that a genetic test is required, even if their employer isn’t explicitly requesting it.

The agent for Miguel Sano, the Dominican Republic prospect profiled in the New York Times article, puts it this way:

“Players are being forced to do the DNA testing — what other choice do they have?” [Rob] Plummer, based in New York, said in a telephone interview. “If they don’t do it, they’re guilty. If you’re clean, you should want to do it.”

Will other employers adopt MLB’s guilty-until-proven-innocent approach, forcing employees to clear their name by handing over a clean genetic bill of health? Time – and the EEOC’s response – will determine whether or not the MLB approach catches on, but it’s clear that the league has already gotten off on the wrong foot with GINA’s sponsor:

“I don’t like the sound of this at all,” said Representative Louise M. Slaughter, Democrat of New York, who first proposed the legislation. “I wrote this law specifically to prevent DNA from being used against employees by employers.”

All of this uncertainty in an area where employers must make real-life decisions points me back to the House of Lords, which reviewed GINA and recommended a wait-and-see approach instead. There is a lot to be said for that.