Genomics and Environmental Regulation: Science, Ethics, and Law

11 Occupational Health and Discrimination Issues Raised by Toxicogenomics in the Workplace

C H A P T E R 11 Occupational Health and Discrimination Issues Raised by Toxicogenomics in the Workplace MARK A. ROTHSTEIN Scientists have long recognized the connection between genetic factors and illnesses caused by workplace exposures. In 1938, geneticist J.B.S. Haldane first suggested the possibility of using genetic screening to exclude workers who were more likely to become ill from occupational exposures. “The majority of potters do not die of bronchitis. It is quite possible that if we understood the causation of this disease, we should find that only a fraction of potters are of a constitution which renders them liable to it. If so, we could eliminate potters’ bronchitis by rejecting entrants into the pottery industry who are congenitally disposed to it” (Haldane, 1938, pp. 179–80). Beginning in 1963, a series of scientific articles explored the biochemical genetic basis of predisposition to occupational illness from a variety of sources, including exposure to workers with glucose-6-phosphate dehydrogenase deficiency, glutathione instability, methemoglobin reduction, ␣1-antitrypsin deficiency, carbon disulfide sensitivity, reagenic antibodies to allergic chemicals, and sickle cell trait (M.A. Rothstein, 1989, pp. 70–71). Today, much of the study of the effects of genetic factors and toxic exposures falls under toxicogenomics, the genome-wide study of changes in the structure, expression, and activity of genes and proteins in response to exogenous toxicants (Marchant, 2003). Although scientific advances in toxicogenomics represent an exciting new development, the policy implications of individuals with varying sensitivity to toxic exposures in the workplace have been debated for at least the past twenty- five years (Office of Technology Assessment, 1983). These policy implications include the appropriateness of regulations in the face of scientific uncertainty, weighing the benefits and burdens of regulation, resolving the conflict between autonomy and paternalism in the workplace, and determining the respective rights of employees and employers. Toxicogenomics raises numerous legal issues in the workplace setting, including workers’ compensation claims of individuals with greater sensitivity to toxic substances, product liability actions against manufacturers of toxicants used in the workplace, and actions for discrimination in employment in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e) when adverse employment actions based on toxic exposures have a disparate impact on the basis of race or national origin. This chapter focuses on three other important issues dealing with toxicogenomics : (1) regulation of workplace hazards under the Occupational Safety and Health Act (OSH Act), (2) disability discrimination actions under the Americans with Disabilities Act (ADA), and (3) genetic discrimination actions under state and federal laws. Regulation under the Occupational Safety and Health Act The Occupational Safety and Health Act of 1970 (29 U.S.C. §§651–78) is the primary federal law regulating worker safety and health. The OSH Act covers employment in every state and territory—an estimated six million workplaces and ninety million employees (M.A. Rothstein, 2006, p. 8). Unlike many labor and employment laws, there is no minimum number of employees or dollar volume of business needed for coverage. The OSH Act applies to all employers engaged in a business affecting interstate commerce—an easy standard to satisfy. Among other requirements, each covered employer must comply with two provisions of the statute. First, section 5(a)(1) requires each covered 184 O C C U P A T I O N A L H E A L T H P E R S P E C T I V E S employer to keep its workplace free from recognized hazards that are causing or likely to cause death or serious physical harm to its employees (29 U.S.C. §654(a)(1)). Second, section 5(a)(2) requires each covered employer to comply with occupational safety and health standards promulgated by the Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor (29 U.S.C. §654(a)(2)). The failure to comply with these requirements may result in the assessment of a range of civil penalties depending on the nature and gravity of the violation as well as on other factors (M.A. Rothstein, 2006, pp. 425–43). Standard-Setting Section 6 of the statute provides for the promulgation of standards in three ways. First, under section 6(a), the secretary of labor was authorized from 1971 to 1973 to adopt as OSHA standards, without rulemaking procedures, two types...