In the 1997 film Gattaca, a future is portrayed in which a person's DNA is the single most important factor in determining each person's lot in life.  Actor Ethan Hawke's character in the film is born with a congenital heart condition that renders him incapable of achieving his lifelong dream of space travel.  So, he assumes the identify of an athlete whose genes would allow him to pursue a career in the space program.

Gattaca was shown on the big screen just over a decade ago.  However, the fictional story in the film seemed much more realistic after the multi-national effort to map and sequence the human genetic code culminated in 2000 with the Human Genome Project.  With its completion, researchers entered a new frontier in medical technology, examining genetic information at a cellular level to detect certain diseases or disorders.  Genetic tests enable physicians to discover whether an individual has a predisposition to certain genetic diseases, often before symptoms have begun.

But for all its benefits, genetic testing also opens the door for discrimination against individuals on the basis of their genetic information.  Specifically, the ability to access genetic information ignites fear that employers may use a person's genetic information in employment decisions (hiring, firing, or promotions).

Despite the fact that use of genetic information by employers is uncommon, several states, including Oklahoma, have enacted laws to prevent employers or health insurance companies from discriminating on the basis of genetic information.  These state laws vary with respect to their scope and level of protection.  Recently, Congress responded on a national level by enacting the Genetic Information Nondiscrimination Act of 2008 (H.R. 493), which establishes a national and uniform standard to protect employees from genetic discrimination.

Signed by President Bush on May 21, 2008, the new law, among other things, makes it an unlawful employment practice for an employer to "fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment . . . because of genetic information. . . ."  It is also an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee or an employee's family member, except in limited circumstances.  The language of H.R. 493 parallels existing language in federal employment discrimination laws, but notably, Congress expressly stated that it did not intend for the disparate impact theory of discrimination to extend to genetic discrimination. 

In addition, the new law dictates how employers must manage genetic information in their possession.  If an employer obtains genetic information about an employee, the information must be treated as confidential medical information, which must be maintained on separate forms and kept in separate files. 

Although the use of genetic information is not prevalent yet, a Gattaca like future is not as far-fetched as it once seemed.  Employers must be aware that while the availability of genetic information creates a litany of benefits, it can also expose employers to liability under federal or state discrimination laws, including the newly enacted Genetic Information Non-Discrimination Act.