[author: RICHARD D. TUSCHMAN]

Time Magazine ran a story last week on a company called 23andMe that is seeking FDA approval for a panel of genetic tests that will cost consumers only $299.  According to 23andMe’s website, all that’s required to complete the tests is for the consumer to order a kit, spit in a test tube, and mail the test tube back to the company.  Two to three weeks later, the consumer gets the results, which include an assessment of inherited traits, genealogy and possible congenital risk factors for certain diseases.  The company appears to be for real –Google, Genentech, and other major players are among its investors. 

So what will happen in the workplace when genetic testing becomes commonplace?  Title II of the Genetic Information Nondiscrimination Act (GINA) restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of genetic information.  Presumably, the vast majority of employers will attempt to comply with Title II of GINA.   

But GINA does not prevent employees from freely sharing their genetic information with co-workers and supervisors.  Suppose a perfectly healthy employee discloses to her supervisor that she has a genetic mutation that makes it likely she will contract Parkinson’s Disease.  That employee is now in a “protected class”; GINA prohibits discrimination against the employee based on her genetic information.  Suppose the supervisor takes an adverse employment action against the employee after the employee’s disclosure.  The question can be raised, was the decision taken for legitimate, nondiscriminatory reasons, or was the supervisor concerned about the employee’s contracting Parkinson’s and becoming disabled?  In much the same way that employment actions taken after complaints of discrimination are now subject to scrutiny under Title VII, employment actions taken after an employee’s voluntary disclosure of genetic information will be subject to scrutiny under GINA.  And because of that, it can be expected that some employees will voluntarily disclose their genetic information in an attempt to protect their jobs.  If that happens, GINA may be very popular indeed.