Chapter 8.B.2 (or 6.B.2)  Disability Discrimination

Notes: Balancing Risk Reduction with Other Values (page 899/609)

Note 1. Disability Discrimination Law (page 899/609)

    The ADA was amended in 2008 to provide more clarity and guidance to the application of the ADA.  The amendments clarify key ADA concepts such as “disability,” “major life activity,” “major bodily functions,” and “regarded as having an impairment.” Among other things, the ADA amendments should assist individuals with chronic or episodic illnesses to qualify for protection under the Act.  Resources giving access to the current text and the 2008 amendments can be found at U.S., Dept. of Justice, ADA Regulations and Technical Assistance Materials, http://www.ada.gov/publicat.htm.

Note 3. Direct Threat (page 900/610)

    For more on who should bear the burden of proof in establishing a “direct threat”, see S.R. Christie, AIDS, Employment, and the Direct Threat Defense:  The Burden of Proof and the Circuit Court Split, 76 Fordham Law Rev. 235 (2007).

New Note 4.5. Genetic Discrimination (page 901/610)

After many years of discussion and debate, Congress passed and President Obama signed the Genetic Information Nondiscrimination Act (GINA) of 2008. Pub.L. 110-233, 122 Stat. 881 (May 21, 2008). The purpose of GINA is to protect individuals from discrimination in employment and health coverage based on genetic information. To view the text of the bill, click on this link. 

Section 2 of GINA recites the justifications for federal legislative protection from genetic discrimination, including the history of state eugenics laws and examples of public and private discrimination and the inadequacy of existing federal and state legislation. The Act notes that “Congress has collected substantial evidence that the American public and the medical community find the existing patchwork of State and Federal laws to be confusing and inadequate to protect them from discrimination. Therefore Federal legislation establishing a national and uniform basic standard is necessary to fully protect the public from discrimination and allay their concerns about the potential for discrimination, thereby allowing individuals to take advantage of genetic testing, technologies, research, and new therapies.” Id. at §2(5).

GINA generally prohibits the use of genetic information to discriminate in health benefit plans, group health insurance, individual plans, and Medicare supplemental insurance.  Id. at § 101-104. Entities are also prohibited from requiring genetic tests or collecting genetic information. Discrimination is defined and limited to determinations made based on genetic factors; entities are still permitted to make coverage and cost decisions based on the manifestation of disease or illness. Id. GINA amends HIPAA to ensure that genetic information is included within HIPAA’s protection of health information.  Id. at §105.  Employers are also prohibited from discriminating against employees or potential employees based on a broad definition of genetic information that includes both the individual and his/her family members. Id. at 201-213.

For more information about GINA see Health law - genetics - Congress restricts use of genetic information by insurers and employers. - Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233, 122 Stat. 881 (to be codified in scattered sections of 26, 29, and 42 U.S.C.), 122 Harv. L. Rev 1038 (2009); the National Human Genome Research Institute (NHGRI), http://www.genome.gov/; Russell Korobkin and Rahul Rajkumar, The Genetic Information Non-Discrimination Act – A Half-Step toward Risk Sharing, 359(4) New Eng. J. Med. 335 (2008); Mark A. Rothstein, Putting the Genetic Information Nondiscrimination Act in Context, 10(9) Genet Med. 655, 655 (2008); and K.L. Hudson, M.K. Holohan, and F.S. Collins, Keeping Pace With the Times – the Genetic Information Nondiscrimination Act of 2008, 358 New Eng. J. Med. 2661, 2661 (2008).