Bill S-201, An Act to prohibit and prevent genetic discrimination, is currently being reviewed and debated by the Senate Standing Committee on Human Rights. If passed, this Bill would impose quasi-criminal sanctions for genetic discrimination in the workplace, meaning that employers could face significant penalties in the future, including imprisonment. While the principle behind this Bill is commendable, two problematic issues should be considered.
First, the Bill provides for a multiplicity of proceedings by which an employee can seek both quasi-criminal recourse under the Genetic Non-Discrimination Act, and civil recourse under the current Canada Labour Code or the Canadian Human Right Act. Such a wide array of legal avenues is worrisome, as it may inadvertently undermine judicial efficiency and promote duplicate litigation against employers. It should be noted that the Supreme Court of Canada, in British Columbia v Malik, recently cautioned against practices that encourage “duplicative litigation, potential inconsistent results, undue costs and inconclusive proceedings.”
Second, why should employers found to have committed genetic discrimination face potential imprisonment when employers found to have committed discrimination on the basis other prohibited grounds, such as race, religion or mental illness, are not? Indeed, imposing quasi-criminal sanctions for genetic discrimination may unintentionally favour a hierarchy of rights by which one right is deemed more important than another. This approach may be problematic, as courts in Canada have historically held that there should be no hierarchies of human rights. Legislation affording an unequal protection against discrimination therefore has the potential of creating serious concerns for both employers and legal practitioners.
It is unclear whether Bill S-201 will find further support in Parliament as the Government of Canada has yet to adopt an official position on the issue. However, if passed, employers who use genetic testing as a means to evaluate an employee’s fitness for a job and minimize related any health risks should be aware of the current debate in the Senate, and the potential consequences that may result.
Finally, employers must be mindful that even under existing human rights legislation, requiring employees to undergo genetic testing and/or to provide the results of those tests may be a violation of the law unless it is a bona fide occupational requirement.
Written with the assistance of Stéphane Erickson, articling student in Ottawa.