Genetic characteristics: A developing ground of discrimination

Employers should be mindful of a newly recognized form of discrimination that has captured the attention of legislators and the Canadian public: genetic discrimination.

With companies like 23andMe, genetic testing has become increasingly popular in recent years. Genetic tests may confirm a diagnosis, indicate that a person is a carrier of a particular genetic mutation, or identify an increased risk of developing a certain disease. While this genetic information can help individuals make informed decisions about their health and take preventative action, there is some concern that this information may be used by employers to the disadvantage of individuals. Might it be used to refuse to hire someone, deny a promotion, or terminate an employee?

The federal government was the first to enact legislation in response to such concerns. And a bill is now before the Ontario Legislature that would prohibit employers from discriminating against employees on the basis of their genetic characteristics. The courts have also started to weigh in on the issue, in the context of the subjective component of discrimination, or "perceived disability".

Prohibitions on genetic discrimination for federal employers

In May 2017, the Canadian Human Rights Act was amended to prohibit discrimination based on genetic characteristics. Similarly, under the Canada Labour Code, employees cannot be forced to undergo a genetic test or to disclose the results of a genetic test.

Proposed amendments to the Ontario Human Rights Code

On Oct. 3, 2018, Bill 40, Human Rights Code Amendment Act (Genetic Characteristics), 2018, was introduced in the Ontario Legislature. The private member's bill passed second reading and was referred to a Standing Committee of the Legislative Assembly on Oct. 18. Bill 40 would amend the Ontario Human Rights Code to include genetic characteristics as a prohibited ground of discrimination and to provide that every person has a right to equal treatment without discrimination in employment because of genetic characteristics. It includes the right to equal treatment if a person refuses to undergo a genetic test or to disclose the results of a genetic test.

Under Bill 40, "genetic characteristics" is defined broadly as the "genetic traits of an individual, including traits that may cause or increase the risk to develop a disorder or disease." The bill contains an exemption for insurance contracts, which are permitted to make distinctions, exclusions, or preferences on reasonable and bona fide grounds because of genetic characteristics.

This is not the first time Ontario has introduced legislation to prohibit genetic discrimination. Bill 164 would have amended the Human Rights Code to include four new grounds of discrimination, including genetic characteristics. However, it never became law before the previous legislature dissolved. Bill 164 was reintroduced on Sept. 26, 2018, as Bill 35. However, Bill 35 is a private member's bill, not introduced by a member of the majority government; as a result, it is unlikely to become law. While Bill 40 is also a private member's bill, it was introduced by a member of the governing party, the Progressive Conservatives, meaning it may have a greater chance of being enacted.

Relevant case law

Even without express prohibitions, human rights laws might already be interpreted to include protection against genetic discrimination, under existing grounds of discrimination. This is because many Canadian provinces recognize perceived disability in their human rights statutes. Certain genetic characteristics could be understood as a form of perceived disability.

Human rights tribunals and Canadian courts have also clearly recognized the subjective component of disability. For example, in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), three individuals were either denied employment or dismissed as a result of having been tested for medical conditions that had not actually developed into any concrete physical limitation that impeded their ability to perform their jobs. Two of these individuals had spinal anomalies, while the other had asymptomatic Crohn's disease. The Supreme Court of Canada found that these anomalies could be considered a "handicap" within the meaning of Quebec's Charter of Human Rights and Freedoms because of the subjective component of disability. Notably, the court commented that an overly narrow definition of "handicap" would not serve the purpose of the charter "given both the rapid advances in biomedical technology, and more specifically in genetics." This decision may provide a precedent for future tribunals considering claims of genetic discrimination.

Why should employers take note?

While it may not yet arise often in the workplace, genetic testing is likely to become increasingly relevant to employers as it becomes more common. There are two main reasons. First, given that the Canadian Human Rights Act has already been amended to prohibit discrimination based on genetic characteristics, we expect that some provinces and territories may follow and table similar legislation. Second, this is likely to be an area that is ripe for further development in human rights case law.

Employers should be aware of the emerging concept of genetic discrimination. We will be keeping a close eye on further developments, including Ontario's Bill 40.

For more information see:

• Quebec (Commission des droits de la personne & des droits de la jeunesse) v. Montréal (City), 2000 CarswellQue 649 (S.C.C.).

Rachel Devon is an associate with Fasken in Toronto, practicing labour, employment, and human rights law. She can be reached at (416) 865-4390 or [email protected]. This article was reprinted with the permission of Fasken. Fasken is one of the world's leading international business law and litigation firms. You can read Fasken's weekly bulletin, "The HR Space" here.