Corbett on GINA
Just out: William R. Corbett, What is in GINA's Genes? The Curious Case of the Mutant-Hybrid Employment Law, 64 Okla. L. Rev. 1 (2011). From the introduction:
For all of its accolades, however, GINA also is a conundrum. It is the first employment discrimination statute passed without a history of discrimination against the protected class. Accordingly, one commentator labeled it “the first preemptive antidiscrimination statute in American history,” and further noted that it is “perhaps the first antidiscrimination statute passed without an associated identity group.” One might say that genetic testing of GINA has revealed it to be a mutant antidiscrimination statute, differing in significant ways from prior antidiscrimination laws.
The discovery of such a mutation should be monumental. However, it has been argued that GINA, at least in practice, may turn out to be much ado about very little. Genetic information employment discrimination was not a problem when GINA was passed, and it may never have become a problem even without the passage of GINA. With the new law, it seems very unlikely that a significant problem will emerge regarding genetic information discrimination. So, maybe this mutation is not so monumental. Perhaps it will fade almost unnoticed into the annals of antidiscrimination law.
From a theoretical perspective, however, GINA is well worth considering as an aberrant antidiscrimination law, and reconsidering it as something other than just an antidiscrimination mutant. A law like none other before it may have significant theoretical implications. It may reveal something important about the current state of our employment laws, as well as the history, and perhaps the future. If GINA is such an exceptional law, how did it come to be enacted? Does its enactment suggest possible trends for the future of employment law? Ruminating about GINA may elucidate some truths about how employment law, politics, and societal values interact and provide some insight into future employment laws.