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 October 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 October 18, 2018. 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...