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Employment Discrimination Implications of Genetic Screening in the Workplace under Title VII and the Rehabilitation Act

Published online by Cambridge University Press:  24 February 2021

Edith F. Canter
Edith F. Canter*
Affiliation:
Gottlieb & Schwartz, Chicago, Illinois. Boston University School of Law, 1984
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Abstract

The emergence of genetic screening techniques will permit employers to exclude hypersusceptible individuals from potentially hazardous workplace environments. The denial of employment opportunities to these individuals, however, may constitute discrimination. This Note analyzes genetic screening cases with respect to currently available remedies contained in Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. The Note concludes that Title VII claims may succeed but only in limited circumstances and that Rehabilitation Act claims will encounter numerous obstacles to relief. Additionally, the Note discusses some of the implications of the use of genetic screening in the workplace.

Type
Notes and Comments
Information
American Journal of Law & Medicine , Volume 10 , Issue 3 , Fall 1984 , pp. 323 - 347
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1984

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References

1 42 U.S.C. §§ 2000e-2000e-17 (1982).

2 29 U.S.C. §§ 701-796 (1982).

3 This Note does not consider constitutional due process and equal protection claims under the fifth and fourteenth amendments. These claims could only be asserted against state and federal governments and against private employers if state action is found. Since the state and federal governments are unlikely to be involved in fields where genetic screening would have any application and since state action is unlikely to be found against private employers, the opportunity for those screened for genetic traits to assert fifth and fourteenth amendment due process and equal protection claims is likely to be rare or non-existent.

4 See generally E., CALABRESE, POLLUTANTS AND HIGH-RISK GROUPS 151-70 (1978)Google Scholar; Genetic Screening and the Handling of High-Risk Groups in the Workplace: Hearings before the Subcomm. on Investigations and Oversight of the House Comm. on Science & Technology, 97th Cong., 1st Sess., 1 (1981) [hereinafter 1981 Hearings].

5 1981 Hearings, supra note 4, passim. G-6-PD deficiency, a red blood cell disorder stemming from a genetic trait often found in blacks and persons of Mediterranean descent, may create an increased risk of hemolytic anemia from exposure to certain oxidant drugs and industrial chemicals. Murray, , G-6-PD Deficiency, in GENETIC INFLUENCES ON RESPONSES TO THE ENVIRONMENT 58–59 (Institute of Medicine conference summary Jan. 1981)Google Scholar [hereinafter Institute of Medicine]. Calabrese, , Moore, & Brown, , Effects of Environmental Oxidant Stressors on Individuals with a G-6-PD Deficiency with Particular Reference to an Animal Model, 29 ENVTL. HEALTH PERSPS. 49 (1979)Google Scholar; Stokinger, & Mountain, , Test for Hypersusceptibility to Hemolytic Chemicals, 6 ARCH. ENVTL. HEALTH 495 (1963)CrossRefGoogle Scholar; Stokinger, , Mountain, & Scheel, , Pharmacogenetics in the Detection of the Hypersusceptible Worker, 151 ANNAL. N.Y. ACAD. SCIENCES 968, 971 (1968)CrossRefGoogle Scholar; Stokinger, & Scheel, , Hypersusceptibility and Genetic Problems in Occupational Medicine—A Consensus Report, 15 J. Occ. MED. 564, 567-68 (1973)Google Scholar. Serum antitrypsin deficiency may indicate increased susceptibility to familiar pulmonary emphysema, particularly from the inhalation of certain respiratory irritants. Stokinger, Mountain & Scheel, supra, at 968-71; Stokinger & Scheel, supra at 565-67. See Omenn, & Motulsky, , “Eco-Genetics“: Genetic Variation in Susceptibility to Lung Disease, in 29 ENVTL. HEALTH PERSPS. 57, 57–60 (1979)Google Scholar (no current 89-91 (Cohen, Lilienfeld & Huang eds. 1978); cf. Evans, & Bognacki, , Antitrypsin Deficiency and Susceptibility to Lung Disease, in 29 ENVLT. HEALTH PERSPS. 57, 57–60 (1979)Google Scholar (no current consensus as to the role of the deficiency in lung disease). Sickle-cell trait may cause fainting at high altitudes, 1981 Hearings, supra note 4, at 144 (statement of Gilbert Omenn), and adverse reactions to exposure to certain chemical compounds, Stokinger & Scheel, supra, at 572.

6 Paraoxonase polymorphism trait may lead to hypersusceptibility to harm from exposure to certain pesticides. 1981 Hearings, supra note 4, at 146 (statement of Gilbert Omenn). A carbon oxidation mechanism controlled by a single gene may exacerbate harms caused by exposure to cigarette smoke. Id. at 146-47. An HLA antigen trait may be predictive of back disease occuring with work requiring lifting. 1981 Hearings, supra note 4, at 140-42 (statement of Paul Rockey). A slow acetylator phenotype trait may increase one's susceptibility to bladder cancer from exposure to arylamines, used in the preparation of textiles, hairdyes, plant pigments, rubber, and various plastics. Lower, , Nilsson, ,Nelson, , Wolf, , Gamsky, & Bryan, , N-Acetyltransferase Phenotype and Risk in Urinary Bladder Cancer: Approaches in Molecular Epidemiology. Preliminary Results in Sweden and Denmark, in 29 ENVTL. HEALTH PERSPS. 71, 71–72 (1979).CrossRefGoogle Scholar A certain response to carbon disulfide appears to be genetically based, and overexposure of hypersusceptible individuals to carbon disulfide apparently leads to polyneuritis. Stokinger, Mountain & Scheel, supra note 5, at 971-72; Stokinger & Scheel, supra note 5, at 568-69. Exposure to organic isocyanates, used in the production of polyurethane foams, leads to respiratory problems in the hypersusceptible. Stokinger, Mountain & Scheel, supra note 5, at 972-74; Stokinger & Scheel, supra note 5, at 569-71. For other examples, see Omenn & Motulsky, supra note 5, at 87-93. Scientists commenting on the potential for genetic screening use agree that tests should continue to identify traits and correlate them with harms. 1981 Hearings, supra note 4, passim. Thus, the connections between genetic traits and occupational harm may be better established in the future.

7 Courts, too, may question the sufficiency of these links. See infra notes 131-34 and accompanying text.

8 Stokinger & Scheel, supra note 5, at 564-65.

9 Id. at 565.

10 Cooper, , Indicators of Susceptibility to Industrial Chemicals, 15 J. Occ. MED. 355 (1973).Google Scholar

11 See, e.g., Evans & Bognacki, supra note 5, at 57-60; cf. N., ASHFORD, CRISIS IN THE WORKPLACE: OCCUPATIONAL DISEASE & INJURY 118 (1976)Google Scholar (arguing that job selection on the hypersusceptibility factor will be futile, given the great number of variables in occupational disease); 1981 Hearings, supra note 4, at 245 (statement of Jeanne Stellman).

12 Cooper, supra note 10, at 358; 1981 Hearings, supra note 4, at 6-7 (statement of Ernest E. Dixon).

13 1981 Hearings, supra note 4, at 145-47 (statement of Gilbert Omenn); id. at 248-50 (statement of Jeanne Stellman); id. at 262 (statement of Bruce Karrh).

14 1981 Hearings, supra note 4, at 118-19 (statement of Paul Rockey); Holtzman, Predictive Value of Screening: Sensitivity and Specificity, in Institute of Medicine, supra note 5, at 47-51.

15 See supra note 4 and accompanying text; Holtzman, supra note 14, at 47-51; Cooper, supra note 10, at 358; Omenn & Motulsky, supra note 5, at 103-06.

16 1981 Hearings, supra note 4, at 140 (statement of Paul Rockey); id. at 169 (statement of Gilbert Omenn).

17 OFFICE OF TECHNOLOGY ASSESSMENT, ROLE OF GENETIC TESTING IN THE PREVENTION OF OCCUPATION DISEASE 39 (1983); Genes and Jobs, TIME, July 5, 1982, at 46; Severo, 59 Top U.S. Companies Plan Genetic Screening, N. Y. Times, June 23, 1982, at A12, col. 4.

18 OFFICE OF TECHNOLOGY ASSESSMENT, supra note 17, at 37-39. It is unclear how many of the companies have used genetic screening for hiring purposes, and how much they relied on the screening. Id. at 38.

19 Reinhardt, , Chemical Hypersusceptibility, 20 JOM J. Occ MED. 319, 320 (1978).Google Scholar

20 1981 Hearings, supra note 4, at 260-67 (statement of Bruce Karrh); Severo, , The Genetic Barrier: Job Benefit or Job Bias? Part II, N. Y. Times, Feb. 4, 1980, at A13, col. 1.Google Scholar

21 Air Force Rejects Cadets with Sickle Trait, N.Y. Times, Feb. 4, 1980, at A13, col. 1.

22 Lavine, , Industrial Screening Programs for Workers, ENV'T, June 1982, at 34.Google Scholar

23 Id. at 34-35. See also 1981 Hearings, supra note 4, at 144 (statement of Gilbert Omenn).

24 1981 Hearings, supra note 4,passim; Severo, supra note 21, at A12, col. 14; N. ASHFORD, supra note 11, at 118. See generally Note, Genetic Testing in Employment: Employee Protection or Threat?, 15 SUFFOLK U.L. REV. 1187, 1187-89 (1981).

25 Severo, , The Genetic Barrier: Job Benefit or Job Bias? Part I, N.Y. Times, Feb. 3, 1980, at A36, col. 4Google Scholar; Note, supra note 24, at 1188.

26 42 U.S.C. §§ 2000e-2000e-17 (1982).

27 29 U.S.C. §§ 701-796 (1982).

28 Some commentators suggest that the Occupational Safety and Health Act, 29 U.S.C. §§ 651-78 (1980), also impacts on genetic screening. The OSH Act does not discuss genetic screening directly, although it creates a general duty in the employer to provide a safe workplace. The policies behind the general duty clause enter into the genetic screening debate, but the Act creates no specific causes of action for employment discrimination for genetic screenees.

29 42 U.S.C. §§ 2000e-2000e-17 (1982).

30 Congress went beyond the constitutional “suspect class” restrictions in Title VII, protecting groups such as women and religious minorities.

31 Griggs v. Duke Power Co., 401 U.S. 424, 429-30 (1971).

32 42 U.S.C. § 2000e(b), (e). The statute's coverage of employers is broad, including approximately 700,000 private employers, 30,000 units of state and local government and 50,000 unions. Lehr, , Employer Duties to Accommodate Handicapped Employees, 31 LAB. L.J. 174, 175 (1980).Google Scholar

33 See generally 42 U.S.C. § 2000e-2.

34 Id.

35 It shall be an unlawful employment practice for an employer … to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a)(2) (1982).

36 Notwithstanding any other provision of this title, … it shall not be an unlawful employment practice for an employer to hire and employ employees … on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise ….

78 Stat. 352 (codified at 42 U.S.C. § 2000e-2(e)).

37 For example, the requirement of being Jewish is probably a bona fide occupational qualification for a position as a rabbi.

38 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

39 Id.; see also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,254-55 (1981).

40 McDonnell Douglas, 411 U.S. at 804; cf. Wright v. Olin Corp., 697 F.2d 1172, 1185 n.20 (4th Cir. 1982) (explaining the disparate treatment order of proof).

41 Griggs, 401 U.S. at 432.

42 Annot., 36 A.L.R. Fed. 9, 24 (1978).

43 See, e.g., Griggs, 401 U.S. at 432; Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (10th Cir. 1970), cert, denied, 401 U.S. 954 (1971); Chisholm v. United States Postal Service, 516 F. Supp. 810 (W.D.N.C. 1980).

44 Griggs, 401 U.S. at 430-32; Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975).

45 Griggs, 401 U.S. at 432.

46 Albemarle Paper Co., 422 U.S. at 425.

47 401 U.S. 424 (1971).

48 Id. at 431.

49 See, e.g., DeLaurier v. San Diego Unified School Dist., 588 F.2d 674 (9th Cir. 1978) (need to administer school district efficiently was sufficient business necessity to require pregnant women to go on leave at beginning of ninth month of pregnancy regardless of their ability to teach); Woods v. Safeway Stores, Inc., 420 F. Supp. 35 (E.D. Va. 1976) (store's no-beard policy, which had disparate impact on blacks due to genetic skin condition, was justified as business necessity because of consumer dislike of beards in grocery stores).

50 See Robinson v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir. 1971), cert, denied, 404 U.S. 1006 (1971); accord United States v. N.L. Indus., Inc., 479 F.2d 354, 365-66 (8th Cir. 1973); Kinsey v. First Regional Sec, Inc., 557 F.2d 830, 837 (D.C. Cir. 1977); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 245 (5th Cir. 1974); Head v. Timken Roller Bearing Co., 486 F.2d 870, 879 (6th Cir. 1973); Waters v. Wisconsin Steel Works of Int'l Harvester Co., 502 F.2d 1309, 1321 (7th Cir. 1974); Harriss v. Pan Am. World Airways, Inc., 649 F.2d 670, 675 (9th Cir. 1980); Williams v. Colorado Springs, Colorado School Dist., 641 F.2d 835, 841 (10th Cir. 1981); Jackson v. Seaboard Coast Line R.R., 678 F.2d 992, 1016 (11th Cir. 1982).

51 Robinson, 444 F.2d at 798.

52 Id.

53 Statistical data used to establish a prima facie case must be validated and must be relevant to the particular geographic area, if not the actual labor pool. Difficulty arises in proving that the trait occurs more frequently in members of the protected group and in the particular applicant pool. See Hazelwood School Dist. v. United States, 433 U.S. 299, 310-13 (1977); Vuyanich v. Republic Nat'l Bank, 505 F. Supp. 224, 345-54 (N.D. Tex. 1980). As an illustration, while most of those with G-6-PD deficiency are of Mediterranean descent, in a particular small town in Texas, a smaller percentage of those with the trait may be Mediterranean. Many cases are therefore decided over what statistics should be relevant in a given case. See, e.g., Int'l Brotherhood of Teamsters v. United States, 431 U.S. 324, 337-40 (1977); Hazelwood School Dist., 433 U.S. 299 (1977); Albemarle Paper Co., 422 U.S. at 425; Vuyanich, 505 F. Supp. at 224 (N.D. Tex. 1980). See generally Lamber, , Reskin, & Dworkin, , The Relevance of Statistics to Prove Discrimination: A Typology, 34 HASTINGS L.J. 553 (1983)Google Scholar; Note, Judicial Refinement of Statistical Evidence in Title VII Cases, 13 CONN. L. REV. 515 (1981). The validity of statistics linking the genetic trait to a particular group is often disputed. Questions arise as to whether the trait actually occurs more frequently in the protected groups, or in the particular applicant pool. Consequently, it may be costly to generate the necessary validated statistics to make the proof.

54 Courts have applied this test with varying degrees of strictness and differing notions of when a business purpose is “sufficiently compelling” to overcome discrimination. They have applied the bona fide occupational qualification standard to the balancing test even though that defense was created in the statute only in relation to facial discrimination based on gender, religion, or national origin. See, e.g., Meadows v. Ford Motor Co., 62 F.R.D. 98 (W.D. Ky. 1973), aff'd as modified on other grounds, 510 F.2d 939 (6th Cir. 1975).

55 In Smith v. Olin Chemical Corp., 555 F.2d 1283 (5th Cir. 1977), Olin discharged Smith, a black man, because of test results showing a back disease which was the result of sickle-cell anemia, a disease found mostly among the black population. The court held that the screening test was not “arbitrary, artificial, or unnecessary.” Since the job required heavy manual labor, Olin's discharge of Smith was justified under the business necessity defense.

56 See supra notes 4-11 and accompanying text.

57 Woods, 420 F. Supp. at 43.

58 See Dothard v. Rawlinson 433 U.S. 321, 332 n.14 (1977); Robinson, 444 F.2d at 798.

59 See supra notes 4-11 and accompanying text.

60 Dothard, 433 U.S. at 335; Wright, 697 F.2d at 1188. See, e.g., Spurlock v. United Airlines, Inc., 475 F.2d 216 (10th Cir. 1972) (applicants for pilot position could be evaluated by number of flying hours even if this criteria had disparate impact on protected group, because of need for safety).

61 Dothard, 433 U.S. at 335; Wright, 697 F.2d at 1188; Burwell v. Eastern Airlines, 633 F.2d 361, 371 (4th Cir. 1980); Rosenfeld v. Southern Pacific Co., 444 F.2d 1219, 1226 (9th Cir. 1971).

62 See Occupational Safety and Health Act, 29 U.S.C. §§ 651-678 (1976 & Supp. V 1981). “Each employer … shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees … .” Id. at § 654(a)(1).

63 See Mahoney, & Kendall, , OSHA's Medical Surveillance and Removal Programs: Implications and Validity, 42 U. PITT. L. REV. 779, 798 (1981).Google Scholar

64 Crowell, & Copus, , Safety and Equality at Odds: OSHA and Title VII Clash over Health Hazards in the Workplace, 2 IND. REL. L.J. 567 (1978)Google Scholar; Note, Exclusionary Employment Practices in Hazardous Industries: Protection or Discrimination?, 5 COLUM. J. ENVTL. L. 97, 154-55 (1978); Note, supra note 24, at 1209.

65 See supra notes 54-55 and accompanying text.

66 See, e.g., Chrapliwy v. Uniroyal, Inc., 458 F. Supp. 252, 269-71 (N.D. Ind. 1977) (“dollar cost alone is of immaterial consideration … except when expenditures of monies may curtail operations to the extent that incumbent employees may lose their jobs.“); Johnson v. Pike Corp. of America, 332 F. Supp. 490, 495-96 (CD. Cal. 1971) (“no room for arguments regarding inconvenience, annoyance or even expense to the employer.“).

67 See, e.g., Kinsey, 557 F.2d at 837; United States v. N.L. Industries, 479 F.2d at 365-66; Lee Way Motor Freight, Inc., 431 F.2d at 249; Crockett v. Green, 388 F. Supp. 912, 921 (E.D. Wis. 1975).

68 See, e.g., Trivett v. Tri-State Container Corp., 368 F. Supp. 137, 141 (E.D. Tenn. 1973). In Trans World Airlines v. Hardison, 432 U.S. 63 (1977), the Supreme Court held that requiring the employer to suffer more than a de minimis cost to accommodate the employee's religious beliefs was a hardship on the employer, justifying the discriminatory practice. But this decision was an interpretation of § 701(j) of Title VII, 42 U.S.C. § 2000e(j) (1976 & Supp. V 1981), giving the employer a reasonable accommodation defense specifically in religious discrimination cases. No similar defense appears in Title VII for race, gender, or national origin discrimination.

69 544 F.2d 837 (5th Cir. 1977).

70 Id. at 849 (emphasis added).

71 697 F.2d at 1172 (4th Cir. 1982).

72 Id. at 1190 n.26.

73 Robinson, 444 F.2d at 798.

74 29 C.F.R. § 1607 (1983).

75 See Albemarle Paper Co., 422 U.S. at 431; Griggs, 401 U.S. at 436.

76 See supra notes 4-11 and accompanying text.

77 1981 Hearings, supra note 4, at 118-29 (statement of Paul Rockey).

78 Although Robinson apparently placed the burden on the employer to show that no acceptable alternative exists, 444 F.2d at 798, the Supreme Court decision in Albemarle indicates that the burden is on the plaintiff to show that there is an acceptable alternative. See Albemarle Paper Co., 422 U.S. at 425.

79 See Crowell & Copus, supra note 64, at 582; Sloan, , Employer's Tort Liability When a Female Employee is Exposed to Harmful Substances, 3 EMP. REL. L.J. 506, 508 (1978).Google Scholar

80 See Crowell & Copus, supra note 64, at 582; Sloan, supra note 79, at 508.

81 For more in depth discussions of the advantages and disadvantages of waiver, see Crowell & Copus, supra note 64, at 582-83; McGarity, & Schroeder, , Risk-Oriented Employment Screening, 59 TEX. L. REV. 999, 1067 (1981)Google Scholar; Sloan, supra note 79, at 508; Note, supra note 24, at 1216-17.

82 See McGarity & Schroeder, supra note 81, at 1025-29.

83 Note, supra note 24, at 1217 n.159.

84 Id. at 1217.

85 See Crowell & Copus, supra note 64, at 582; Sloan, supra note 79, at 508; Note, supra note 24, at 1216. One commentator recommends that such a waiver be allowed only when the employer has taken every possible measure to reduce hazards in the workplace. See Note, supra note 24, at 1217.

86 29 U.S.C. §§ 701-796 (1982).

87 Lehr, supra note 32, at 175 (contrast with Title VII's coverage of almost 800,000 employers).

88 Simpson v. Reynolds Metal Co., 629 F.2d 1226, 1232 (7th Cir. 1980); see Brown v. Sibley, 650 F.2d 760, 770-71 (5th Cir. 1981); Trageser v. Libbie Rehabilitation Center, Inc., 590 F.2d 87, 89 (4th Cir. 1978); Cain v. Archdiocese of Kansas City, 508 F. Supp. 1021, 1025 (D. Kan. 1981). But see Le Strange v. Consolidated Rail Corp., 687 F.2d 767 (3d Cir. 1982). Most courts have implied a private right of action under § 794, while the courts are split on whether there is such a right under § 793. Prewitt v. United States Postal Service, 662 F.2d 292, 302 (5th Cir. 1981).

89 29 U.S.C. § 794. This section is administered by the Department of Health and Human Services.

90 29 U.S.C. § 793. This section is administered by the Department of Labor, Office of Federal Contract Compliance Programs.

91 Note, Employment Rights of Handicapped Individuals: Statutory and Judicial Parameters, 20 WM. & MARY L. REV. 291, 305 (1978).

92 29 U.S.C. § 706(7)(B). This definition applies to both § 793 and § 794.

93 The statute's ambiguous language does not distinguish whether the record of, or perception of, impairment must substantially limit major life activities or whether the impairment itself must substantially limit his or her activities. The grammatical construction of the statute arguably leads to the second interpretation, although the only court construing the definition of “handicapped” apparently assumed the first interpretation. See E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088, 1098 (D. Hawaii 1980).

94 See 41 C.F.R. § 60.741.2 (1984).

95 45 C.F.R. § 84.3(j)(2)(i)(A) (1983). In 1980, the Justice Department assumed responsibility for enforcing the Act.

96 497 F. Supp. 1088 (D. Hawaii 1980).

97 Id. at 1097-98.

98 Id. at 1097.

99 The OFCCP regulations list “employment” as an activity which an impairment can limit. 41 C.F.R. § 60-741 app. A (1983).

100 E.E. Black, 497 F. Supp. at 1097. See S. REP. NO. 1297, 93rd Cong., 2d Sess. 38, reprinted in 1974 U.S. Code Cong. & Ad. News 6373, 6389-90.

101 Southeastern Community College v. Davis, 442 U.S. 397, 405-06 n.6 (1979) (emphasis added).

102 E.E. Black, 497 F. Supp. at 1102.

103 See Rockey, , Fantel, & Omenn, , Discriminatory Aspects of Pre-Employment Screening: Low- Back X-ray Examinations in the Railroad Industry, 5 AM. J.L. & MED. 197 (1979).Google Scholar

104 See 41 C.F.R. § 60-741.2 (definition of “qualified handicapped individual” includes reference to reasonable accommodation); § 60-741.6(d) (accommodation requirements); 45 C.F.R. §§ 84.3(k), 85.32(a), 84.12, 85.53; Guy, , The Developing Law on Equal Employment Opportunity for the Handicapped: An Overview and Analysis of the Major Issues, 7 U. BALT. L. REV. 183, 267 (1978)Google Scholar.

105 29 U.S.C. § 706(7)(B).

106 41 C.F.R. § 60-741 app. A (1983).

107 45 C.F.R. § 84.3(j)(2)(ii) (1983).

108 See 41 C.F.R. § 60-741 app. A (1983); Note, Employment Discrimination—-Judicial Identification of the “Handicapped Person” in North Carolina—Burgess v. Joseph Schlitz Brewing Co., 16 WAKE FOREST L. REV. 836, 842-43 (1980).

109 See Guy, supra note 104, at 229.

110 The broad definition is not circular because one need not have an actual impairment to be considered handicapped under the Act. When an employer refuses to hire an applicant because it perceives an impairment, then the applicant is limited in his or her employment by the perceived impairment. Thus, a person with a genetic trait who is refused employment because the employer perceives the trait as an impairment has been limited in a major life activity, is considered handicapped, and is thus entided to the protection of the Act.

111 See Guy, supra note 104, at 230; Note, supra note 108, at 843 n.47. The definition of handicapped originally applied to the entire statute: “the term ‘handicapped individual’ means any individual who (i) has a physical or mental disability which for such individual constitutes or results in a substantial handicap to employment and (ii) can reasonably be expected to benefit in terms of employability from vocational rehabilitation services provided pursuant to titles I and III of this Act.” 29 U.S.C. 706(7)(A).'The 1974 Amendment added § 706(7)(B) which defined “handicapped individuals” for purposes of Title IV and V of the Act, including both §§ 793 and 794. See supra note 89 and accompanying text.

112 See S. REP. NO. 1297, supra note 100, at 6414.

113 See Guy, supra note 104, at 230-31.

114 29 U.S.C. § 793 (“shall take affirmative action to employ and advance in employment qualified handicapped individuals.“); 29 U.S.C. § 794 (“No otherwise qualified handicapped individual … shall … be subjected to discrimination.“).

115 E.E. Black, 497 F. Supp. at 1100.

116 Davis, 442 U.S. at 406. Of course, people with genetic traits making them hypersusceptible to occupational disease in the future are not in the same position as people who are currently handicapped. Hypersusceptible people are currently capable of doing the job. The question, therefore, is whether these people should be deemed unqualified because they will contract a disease in the future. See infra notes 131-37 and accompanying text.

117 Under § 503, an employer is required to take affirmative steps to employ qualified handicapped individuals. The Court indicated that, in certain circumstances, § 504 also requires some modifications of a program to accommodate handicapped individuals. Davis, 442 U.S. at 412-13. Whether requiring accommodations for the genetically hypersusceptible would be reasonable is discussed infra at notes 126-39 and accompanying text.

118 29 U.S.C. § 706(7)(B).

119 45 C.F.R. Part 84.61 app. A (1983).

120 41 C.F.R. § 60-741.30 app. A (1983).

121 Guy, supra note 104, at 229-30.

122 Id.

123 497 F. Supp. 1088 (D. Hawaii 1980).

124 Id. at 1099 (quoting United States Dep't of Labor v. E.E. Black, Ltd., No. 77-OFCCP- 7R (U.S. Dep't of Labor, Sept. 13, 1978)).

125 OFCCP v. E.E. Black, Ltd., 19 FAIR EMPL. PRAC. CAS. (BNA) 1624, 1633 (1979).

126 E.E. Black, 497 F. Supp. at 1099.

127 Id. at 1100-01.

128 Id. at 1101.

129 Id. at 1102.

130 29 U.S.C. § 794.

131 45 C.F.R. § 84.3(k)(l) (1983).

132 45 C.F.R. Part 84.61 app. A (1983).

133 Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979).

134 Id. at 405-06, 405 n.6.

135 666 F.2d 761 (2d. Cir. 1981).

136 Id. at 777. The court stated:

In our view she would not be qualified for readmission if there is significant risk of such recurrence. It would be unreasonable to infer that Congress intended to force institutions to accept or readmit persons who pose a significant risk of harm to themselves or others, even if the chances of harm were less than 50 percent. Indeed, even if she presents any appreciable risk of such harm, this factor could properly taken into account in deciding whether, among qualified applicants, it rendered her less qualified than others for the limited number of places available.

Id.

137 The circuits are divided as to whether a private right to action exists under § 503. See supra notes 86 and 88 and accompanying text.

138 41 C.F.R. 60.741.5(c)(2) (1984).

139 Id.

140 41 C.F.R. § 60-741.5(d) (1984).

141 Id.

142 OFCCP Policy Directive 80-34, Sept. 30, 1980.

143 694 F.2d 619 (9th Cir. 1982).

144 Id. at 623

145 See Doe, 666 F.2d at 177; see also notes 131-37 and accompanying text.

146 See Doe, 666 F.2d at 777; Compare Doe's reasonable accommodation with Bentivegna v. United States Dep't of Labor, 694 F.2d 619 (9th Cir. 1982). “[Potentially troublesome health problems cannot provide the basis for discriminatory job qualifications unless they can be connected directly to ‘business necessity or safe performance of the job.’ “ Id. at 623.

147 45 C.F.R. § 84.12(c) (\984). See also Note, supra note 91, at 304-11; Lehr, supra note 32, at 178-80.

148 See United Handicapped Federation v. Andre, 558 F.2d 413, 415-16 (8th Cir. 1977); Bartels v. Biernat, 427 F. Supp. 226, 233 (E.D. Wis. 1977). See also Note, supra note 91, at 304-11.

149 See Stutts v. Freeman, 694 F.2d 666 (11th Cir. 1983).

150 442 U.S. 397 (1979).

151 442 U.S. at 410-11.

152 Id. at 410.

153 Id. at 413-14.

154 See Note, Southeastern Community College v. Davis, Section 504, and Handicapped Rights, 16 CAL. W.L. REV. 523 (1980); Note, Discrimination on the Basis of Handicap: The Status of Section 504 oj'the Rehabilitation Act of’ 19'/'3, 65 IOWA L. REV. 446(1980); ‘Hole, Accommodating the Handicapped: Rehabilitating Section 504 after Southeastern, 80 COLUM. L. REV. 171 (1980).

155 See Note, Exclusionary Employment Practices, supra note 64, at 106-07.