Five Recent Stories Illustrating "The Constitution in our Midst" (the second in our series)

You're Hired...But Before Your Start, Could You Give Me a Sample of Your DNA?

You get a new job and your excitement builds as you get closer to that first day of work. A few days before you start, you sit down with your new company's Human Resources department to get all the paperwork squared away. There are the usual requests for documentation: the I-9 form confirms that you are eligible to work in the United States; the withholding form tells the employer how many deductions you will claim. But then comes an unusual question: the HR director asks for a follicle of hair for a DNA study, a urine and feces sample to check for drugs, and schedules you for a bone scan to determine your true age and medical vulnerabilities.

Beginning this November, if the employer used that information in a discriminatory manner, he or she would be in violation of the new federal law known as GINA. The acronym stands for Genetic Information Non-discrimination act. The law will make it illegal for employers to base hiring decisions on genetic information and also makes it illegal for health insurance companies to deny coverage based upon genetic information. But it does not cover life insurance decisions or long-term care insurance decisions.

A recent story in the New York Times described the efforts of major league baseball teams determined to know the true age of Latin American ballplayers recruited to play in the major leagues. Interest in such information has grown as several players, in particular Miguel Tejada (above) of the Astros, admitted that they lied about their ages, wanting to appear to scouts as younger, and full of promise, as opposed to older, and perhaps fully developed. A 2001 study found 300 professional baseball players who had lied about their ages. Because the GINA law is not yet in effect and has not been enforced, it is unclear how it will apply to cases in which American companies conduct DNA tests abroad on citizens of other countries.

Major League baseball insists that DNA testing has been used only in the Dominican Republic “in very rare instances and only on a consensual basis to deal with the identity fraud problem that the league faces in that country.”

While determining age may be the main motivation for baseball’s DNA testing, some watchers wonder whether the DNA results could be used to determine other crucial markers for future performance. Are they likely to succumb to injury? Arthritis? Rare genetic disorders?

Two side notes to this idea:
1) Is such information really that valuable? Mark Rothstein, a professor of bioethics at the University of Louisville School of Medicine, said: “The funny thing about this all is that the most famous baseball player with a genetic disorder was Lou Gehrig. Would they have signed him if they knew he was predisposed to A.L.S.?”

2) Is this the future? A recent study in the British Medical Journal studied 167 healthy volunteers known to be at risk for the inherited illness Huntington's disease and forund them to have suffered significant genetic discrimination.