The new ILO Global report on discrimination in the world of work refers to a number of emerging practices which can result in unfavourable treatment of potential job candidates because of the perceived risks that have nothing to do with the requirements of the job or their competence or skills. One of these practices, genetic testing, has been challenged by courts in a number of countries and has prompted widespread debate over its legitimacy.

DARMSTADT, Germany (ILO Online) – In 2004, a young teacher in Germany was refused a permanent job on the basis of a medical examination that indicated her working future might be compromised by her family history.

During a routine medical given to all applicants to the German civil service, including teachers, examiners noted that some of the woman's relatives had had Huntington's Disease, a rare, progressive, degenerative disease that causes certain nerve cells in the brain to waste away, and is know to run in families.

The case has raised concerns that employers could use the legal vacuum on genetic testing that currently exists in Germany to discriminate unfairly against employees.

"A law that puts an acute disease that hinders people from performing a job on the same level as a mere prediction about what a person's health might be like in 10, 20, or 30 years is not acceptable", said Professor Spiritos Simitis, Chairman of the German National Ethics Council, which was set up to advise the German government on ethical issues in the life sciences, condemned the decision of the Hessen educational authorities.

"It is not necessarily the case that this young teacher will have certain symptoms at a certain age", he added. "The authorities have rejected her for a job on the basis of a mere prediction and so placed the full burden of the risk on her."

The issue is complicated by the fact that some conditions appear to be more "acceptable" than others when it comes to hiring consideration. According to Professor Simitis, if the employer was prepared to accept the risk that civil servants might develop alcoholism, depression, or other forms of ill health that also may run in family histories, then it should also accept the risks associated with some genetic diseases.

While the teacher has since successfully contested the decision in the Darmstadt Administrative Court, the German government has produced draft legislation that has not been finalized so far.

This particular incident is among several cited in a new ILO report entitled Equality at work: Tackling the challenges (Note 1). The report has been prepared under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work adopted by the International Labour Conference in 1998, and is part of a series that considers the issues of freedom of association, child labour, forced labour and discrimination on a four year cycle.

The new report, to be published on 10 May and discussed at this year's International Labour Conference which begins in late May, provides a global report card on progress in addressing many forms of discrimination over the past four years. This year, however, it forges a new path by considering new, emerging forms of discrimination, one of which involves genetic testing in hiring.

"Genetic testing may easily lead to unjustified dismissals or denial of a job", says report author Manuela Tomei. "Making an employment decision on the basis of the probability that an individual may be prone to develop a certain disease rather than on his/her actual capacity to perform the work, is discriminatory."

According to the ILO report, the German case is not unique. In 2001, the United States Equal Employment Opportunities Commission alleged that the Burlington Northern Santa Fe Railroad secretly subjected its employees to surreptitious testing for a genetic marker linked to carpal tunnel syndrome. A year before, three men were awarded damages by the Hong Kong District Court in China because the Government had refused them employment purely on the grounds that their parents were affected with schizophrenia.

Concern over the issues has prompted the adoption of legal measures. Several European Union Member States, including France, Sweden, Finland and Denmark, have introduced legislation prohibiting genetic discrimination. Others, including Austria, the Netherlands, Luxemburg, Greece and Italy, have banned or restricted gathering genetic data from employees without their explicit consent.

In the United States, the US Senate unanimously passed the Genetic Information Non-Discrimination Act of 2005 that forbids the improper use of genetic information in health insurance and employment.

Employers and trade unions are also taking remedial action. IBM is the first major cooperation that revised its policy to prevent the use of genetic information in making personnel decisions and for determining employees' eligibility for health care or benefit plans. In 2002, the Australian Council of Trade Unions stated in response to the inquiry of the Australian Law Reform Commission and Australian Health Ethics Commission on the protection of human genetic information that employers should not be allowed to gather genetic information about any employee.

"While the debate is still open as to whether or not there are objective reasons to exclude or treat less favourably an individual because of his/her genes, any such differential treatment must be objective, reasonable, appropriate and proportionate", Ms. Tomei says. "One key aspect of the principle of non-discrimination and equality at work is that all employment decisions must be based on a person's capacity to perform a job."

Note 1 - Equality at work: Tackling the challenges, Report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, International Labour Conference, 96th Session 2007, International Labour Office, Geneva. ISBN 978-92-2-118130-9, ISSN 0074-6681.