Case Analysis

The case under consideration discusses about a scenario where a potential employee has been rejected
on the basis of genetic tests conducted by the employer.

Objective
To evaluate the alleged genetic discrimination in employment and give a reasoned judgment based on
relevant facts and the law of the country.

Case facts
The case is about the recruitment process conducted by of Indian Queer Understanding of Ethnicities
(UNIQUE) for filling up the posts of Faculty members. One of the conditions put up for recruitment was
to conduct genetic tests of applicants and only after getting satisfactory results in the genetic tests, the
candidature of the applicant will be considered.

One of the applicants, Prof Baba was rejected in this process on the basis of unsatisfactory results in the
genetic tests undertaken by the applicant. Also, the rejection letter was subsided with the reason that
Prof Baba had a rare form of degenerative condition, which may lead the person to become
intellectually unstable. Moreover, this information was shared with the members involved in the
selection process.

Analysis
Genetic Test

A genetic test is a category of medical tests which recognizes changes in genes, proteins or
chromosomes of a person. These tests help in determine whether a person is prone to a particular
genetic disorder.

Employee and Employers Concerns in Genetic tests

A genetic test helps employers to make sure that the hired employee can serve the company in fit and
fine manner for the term required by the company. It helps in estimating the future costs associated
with genetic disorders of the employee. It assists the company to make sure that the firm doesnt need
to pay for these costs if required in future. The employee may stay for a very short term with the firm
but may still avail all the health benefits and pension plan, which is a loss for the employer.
On the other hand employees may be unlawfully discriminated on the basis of genetic tests as this is a
novel subject. The confidential information of the employees genetic tests may be shared with
employers without the consent of the employee.

Existing Laws

Genetic Information Non Discrimination Act was passed in 2008 in USA. The act clearly states that a
person cant be discriminated by the health insurance companies and employers (potential and existing)
solely on the basis of genetic predisposition to develop disease in future.

International Labor Organization ILOs report on Equality at Work: Tackling Challenges has
mentioned that making a decision based on a probability that a person may be prone to certain genetic
diseases even if he/she is capable to perform the job, is discriminatory.

France, Sweden, UK, Finland and Denmark have similar laws on genetic discrimination.

Unfortunately, no such Bill has been passed in India as of now.

Judgment
Keeping in view the relevant facts discussed in the case, existing laws for the subject and rational
reasoning thereof, we give the following analysis:

1. The case mentions that The reason cited in the letter is that he was found to be highly
predisposed to a rare form of degenerative condition, which could render the person
intellectually unstable. The word could is predictive in nature. The tests predict that the person
may become intellectually unstable in future. But no person shall be discriminated based on
assumptions or predictions. Future predictions shouldnt control the present rights of a person.
2. The genetic tests undertaken by the employer are arbitrary tests and dont follow any standards
or convention. The lack of standardization in the field of genetic testing makes the accuracy of
these tests questionable. Hence, no employee shall be prevented from his/her rightful post
based on such test.
3. The recruitment is for the posts of Faculty members at an educational institute. This place is not
considered as harmful for even the person suffering from genetic disorders. So, if the person in
contention is perfectly fit to serve the requirements of the job in his/her full capacity, he/she
shall not be barred from doing it.
4. The confidential genetic information was disclosed to all the members involved in the
recruitment without notifying the employee. The advertisement doesnt mention any clause to
share the genetic information to all the persons involved in recruitment. Hence, the employee
should have been notified when the results of the report were available and the confidential
information should have been disclosed to other members only after the consent of the
employee.
5. The Persons with Disability Act, 1995 doesnt clearly state the genetic conditions under
disabilities identified in the latest amendment of 2014.
Operating Order

This case dealt with a novel subject, which neither has prescribed law nor any references. Keeping in
mind the above point by point analysis, we order the following:

1. A fresh recruitment process shall be conducted for the advertised posts. The selections of the
prior process stand cancelled. The institute shall publish a new advertisement stating the re-
conducting of the recruitment process.
2. The institute is free to conduct genetic tests but only with the consent of the applicant. But, the
institute shall not discriminate by any means on the basis of genetic tests conducted by them or
a third party.
3. The applicant shall be notified when the results of the genetic test are available. The results
cannot be disclosed to any person except the applicant. The results can only be shared in case :
I. The applicant gives consent for disclosing the information.
II. The workplace setting is harmful in any way to the candidate.
4. The candidate Prof Baba shall get fair and equitable chance to get recruited to the applied
institute. The genetic tests conducted in the previous recruitment have no validity going further.
5. The institute is warned for sharing confidential genetic information with the recruitment
committee members. Any repetition of same behavior may or may not lead to stricter
punishment according to the law of the country.

https://www.indiafilings.com/learn/hr-laws-in-india/

http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1332&context=hlelj

http://www.dnaindia.com/mumbai/report-tb-fears-cost-healthy-indians-jobs-abroad-2071424

https://www.change.org/p/we-the-people-of-india-along-with-government-of-india-genetic-non-
discrimination-law-in-india

https://www.genome.gov/pages/policyethics/geneticdiscrimination/saponhr493.pdf

http://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_082589/lang--en/index.htm