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Titolo:
Distinguishing speculative and substantial risk in the presymptomatic job applicant: Interpreting the interpretation of the Americans with Disabilities Act direct threat defense
Autore:
Wong, AJ;
Indirizzi:
Univ Calif Los Angeles, Sch Law, Los Angeles, CA 90024 USA Univ Calif Los Angeles Los Angeles CA USA 90024 Los Angeles, CA 90024 USA
Titolo Testata:
UCLA LAW REVIEW
fascicolo: 4, volume: 47, anno: 2000,
pagine: 1135 - 1177
SICI:
0041-5650(200004)47:4<1135:DSASRI>2.0.ZU;2-I
Fonte:
ISI
Lingua:
ENG
Soggetto:
GENETIC DISCRIMINATION; EMPLOYERS; WORKPLACE;
Tipo documento:
Article
Natura:
Periodico
Settore Disciplinare:
Social & Behavioral Sciences
--discip_BC--
Citazioni:
59
Recensione:
Indirizzi per estratti:
Indirizzo: Wong, AJ Univ Calif Los Angeles, Sch Law, Los Angeles, CA 90024 USA Univ Calif Los Angeles Los Angeles CA USA 90024 es, CA 90024 USA
Citazione:
A.J. Wong, "Distinguishing speculative and substantial risk in the presymptomatic job applicant: Interpreting the interpretation of the Americans with Disabilities Act direct threat defense", UCLA LAW R, 47(4), 2000, pp. 1135-1177

Abstract

Advances in genetic and medical technology have created a growing class ofpeople requiring protection under the Americans with Disabilities Act (ADA). The presymptomatic, or "healthy ill," are individuals who are currently in good health and display no symptoms of disease or injury but are revealed, in a post-job-offer medical examination, to have a predisposition for a disease or injury. The presymptomatic are protected from employment discrimination under the ADA, which recognizes that disability discrimination may result from the perception of disability, even when no actual disability exists. The ADA specifically prohibits an employer from finding applicants unqualified solely because they have predispositions for disease or injury that may be triggered by the work environment. However, as a protection to employers, the ADA's "direct threat" defense allows an employer to require, as a valid employment qualification, that a job applicant not pose a direct threat to the health or safety of others. The Equal Employment Opportunity Commission (EEOC), in drafting regulations to implement the ADA, expanded the definition of "direct threat" to encompass "a significant risk of substantialharm to the individual or others. "In this Comment, Amanda Wong argues that the EEOC's "direct threat to self" interpretation creates a confusing standard for employers to apply because there is no clear definition of what constitutes a legal refusal to hire,based on a significant risk of substantial harm, as opposed to an illegal refusal based on speculation of future harm. She argues that the determination of whether a medical or genetic precondition will evolve into a future risk of harm necessarily involves speculation. This is because the disease or injury has not yet manifested, and the individual has no medical or employment history on which to draw. The EEOC's interpretation opens the door to paternalism and discrimination, thus depriving the presymptomatic of the ADA's protection. Wong examines the policy concerns behind the ADA direct threat defense andargues that the EEOC's expanded interpretation diverges impermissibly fromthe ADA's original meaning and intent. She further argues that the EEOC interpretation fails to provide for the presymptomatic, because predispositions, unlike actual disabilities, cannot be evaluated using the individualized, fact-based analysis that the ADA requires. Wong proposes two different approaches to assessing direct threat in otherwise qualified presymptomatic individuals. With a somatic predisposition, the existence of an actual and measurable condition may allow for individualized diagnosis and prognosis of an applicant. In such cases, the status of the individual's predisposition may be compared with current medical knowledge of the condition to satisfy the ADA's requirement of an objective, individualized assessment of risk. A diagnosis of a genetic predisposition, however, reveals much less about an individual's prognosis. The individual's predisposition has not manifested itself except by the presence of a gene, and possession of the genes for a condition is no guarantee that the condition will ever develop. Further, the current stare of genetic technology has not yet advanced to the stage at which it will be a reliable indicator of substantial or imminent risk. Because a presymptomatic individual has not previously experienced any symptoms, there is no real basis, short of speculation, on which to disqualify such an individual. Thus, when an employer uses a genetic predisposition to disqualify an individual, this action must constitute discriminatory speculation under the ADA. Wong. concludes that if competent medical opinions differ on an otherwise qualified, presymptomaticindividual's prognosis, the individual should be trusted to choose to assume a future risk himself.

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Documento generato il 22/09/20 alle ore 10:01:34