To the Editor: This letter is an addendum to Paul Appelbaum's Law & Psychiatry column in the April issue, "Genetic Discrimination in Mental Disorders: The Impact of the Genetic Information Nondiscrimination Act" (GINA) (1).
After GINA was signed into law in May 2008, the Equal Employment Opportunity Commission (EEOC) held informational sessions with clinicians representing a range of professional backgrounds and specialties who sometimes conducted employee medical assessments on behalf of employers. These clinicians were concerned that information they routinely gathered in such assessments, such as family histories and histories of family illness, could be used by employers in work-related decisions that might result in discrimination. A senior EEOC representative assured them that information from family histories was considered in the GINA provisions to be "genetic information," along with information obtained specifically through genetic testing, and was therefore covered under GINA, meaning that it could not be used by employers in work-related decisions. It was further stated that if the employer was "thought to use" that information or even "possessed it," it was covered under GINA. When questioned further, the senior representative stated that if there was a claim of discrimination, the employer would have to prove not only that it did not use the information, whether obtained in an employer-initiated evaluation or accidentally, and that the employer had obtained it "by accident"—for example, in passing or in a document sent to the employer for other reasons.
Most mental health clinicians' work does not involve evaluating employees for employers, and most large employers, when such legally compromising information has surfaced, are likely to act contrary to their own interests in order to avoid even the appearance of discrimination. However, because a family history is a necessary part of any evaluation, we all need to be aware that the pen and the computer have become dangerous instruments.
Dr. Scott is affiliated with the Department of Psychiatry, Harvard Medical School, Cambridge, Massachusetts.
Appelbaum PS: Genetic discrimination in mental disorders: the impact of the Genetic Information Nondiscrimination Act. Psychiatric Services 61:338—340, 2010