Want A Job In Akron? Hand Over Your DNA

(AP / CBS)

It's not unusual for employers to conduct criminal background checks during the hiring process. But the University of Akron has taken this to a surprising new level.

The Ohio school now reserves the right to require any prospective faculty, staff, or contractor to submit a DNA sample, which genetic-testing experts say makes it the first employer in the nation to take such an extreme and potentially intrusive step.

The new policy, which says a "DNA sample for purpose of a federal criminal background check" may be collected, took the campus by surprise after it was announced last week. An adjunct faculty member has resigned in protest and is contemplating a lawsuit, and the local chapter of the American Association of University Professors says that genetic testing violates a collective bargaining agreement.

"At any number of levels, it's alarming," says Stephen Aby, a professor of bibliography who is the past president of Akron's AAUP chapter. "It's awfully broad. It gives them the discretion to do fingerprinting or DNA testing as they see fit."

Adopting the policy, which the university's board of trustees did in time for the fall semester, appears to violate a federal law that takes effect on November 21 called the Genetic Information Nondiscrimination Act, better known as GINA. It also could conflict with the Americans with Disabilities Act.

"GINA clearly prohibits the collection of a DNA sample from employees or prospective employees by the University of Akron," says Susannah Baruch, an attorney and consultant for Johns Hopkins University's Genetics and Public Policy Center. "One of the primary targets for GINA was employers collecting genetic information from employers and using it to make decisions about hiring and firing and promotions. It's that kind of discrimination that GINA was designed to prohibit."

A spokeswoman for the University of Akron, Laura Massie, said in e-mail: "As with any new policy, sometimes there is unwarranted confusion and alarm... There are many positions that legally require background checks, in which case those prospective employees would have to submit to one (and, as you also know, employment is completely by choice. Nobody has to submit to one; you're always free to try to find other employment). In addition, those employees already working at the University of Akron do not receive background checks unless they move into a new position within the university that absolutely requires it by law."

Massie did not reply to questions that CBSNews.com posed on Tuesday, including how long DNA samples are stored and who has access to them, and whether the test is performed by drawing blood or through a cheek swab. She did say that the university has not conducted any DNA tests so far, and that it "does not intend to perform testing or background checks on any part-time faculty each semester or each fall" as their temporary appointments come up for renewal. Ted Mallo, the university's general counsel, did not respond to a request for comment.

Matt Williams, who worked as a lecturer at the University of Akron, quit last week after learning about the new DNA policy in the school's weekly e-mail digest. "I'm trying to get the word out there and raise the profile on some of these issues," Williams said. "(The policy) is about as broad as you could possibly write it."

"I'm considering filing for a temporary restraining order to keep the university from implementing this," says Williams, who is also vice president of an advocacy group for adjunct instructors called New Faculty Majority.

What remains unclear is why the school adopted the policy in the first place. Some faculty members are speculating it was prompted by Ohio University's plan to conduct a non-DNA background check for all new hires, a policy that has not been finalized. Other speculation has involved a series of rapes last year near the University of Akron, which has a student population of about 26,000 on a downtown metropolitan campus.

While genetic testing of employees remains exceedingly rare, it has happened. Until 1993, the government-run Lawrence Berkeley Laboratory conducted medical exams with surreptitious blood and urine tests for syphilis, sickle cell anemia, and pregnancy. Burlington Northern Santa Fe Railroad used false pretenses to obtain genetic information about employees' predisposition to carpal tunnel syndrome.

Another reason to collect DNA is a more grisly one: battlefield and crime scene differentiation. Scottish police require new recruits to provide DNA samples as a condition of employment, which is added to an "elimination database" that separates police DNA from non-police DNA at crime scenes but is not otherwise analyzed. The U.S. military's DNA Identification Laboratory collects samples from active-duty troops. (And, of course, there's the unresolved legal question about whether Americans arrested but not convicted of a crime can be forcibly DNA-sampled.)

The College and University Professional Association for Human Resources, or CUPA-HR, says the University of Akron's policy is a first.

"That is not something we have seen at any other institution," says Andy Brantley, the group's president. He says that CUPA-HR would "strongly advise" any employer considering genetic testing to review the relevant laws -- including GINA, the ADA, the Health Insurance Portability and Accountability Act, and Title VII of the Civil Rights Act to ensure there's no unlawful discrimination taking place -- before adopting such a policy. (The Equal Employment Opportunity Commission says that the ADA prohibits "requiring medical examinations that are not job-related and consistent with business necessity.")

The Genetic Information Nondiscrimination Act, or GINA, was signed into law by President Bush in May 2008. It says: "It shall be an unlawful employment practice for an employer to fail or refuse to hire, or to discharge, any employee... because of genetic information with respect to the employee." Genetic information is defined as any information about an "individual's genetic tests."

It's true that the University of Akron's DNA-testing policy isn't designed to weed out potential employees with, say, a gene linked to breast or prostate cancer that could make them more expensive to insure -- which is what GINA's drafters were most concerned about. Instead, the school's ultimate purpose is the more conventional one of a criminal background check.

That doesn't matter, says Jeremy Gruber, president of the Council for Responsive Genetics in New York City. "GINA specifically prohibits employers from requesting or requiring genetic information," Gruber says. "It does not draw a distinction about how the DNA sample could be or should be used. There is no exception under GINA for employers in this context at all."

Gruber believes that, in theory, there may be a way for the Akron administration to implement its policy in a way that complies with GINA: "If the university had sufficient handling safeguards to demonstrate that they were collecting biological samples and sending the entire sample on to the federal government for testing without taking any steps to analyze the sample they might not be in violation of GINA." But, he adds, if the FBI relies on fingerprints for background checks, why is a DNA sample necessary?

The American Civil Liberties Union's Ohio chapter says it has not yet reviewed GINA and the other relevant genetic and medical-privacy laws, which would be necessary before deciding to take legal action against the University of Akron.

But, says ACLU of Ohio executive director Christine Link, there are other problems with Akron's policy. "The university does not have the right to use discretion (in DNA testing), because discretion typically leads to racial profiling," she says. "As one of my colleagues quipped, 'All the kitchen help get DNA samples, but none of the faculty.' It's divided by class and money and education... From a civil liberties perspective, we see that to be extremely dangerous, unfair, and potentially unlawful."

Update 5:10 p.m. ET Wednesday: The University of Akron's Laura Massie was kind enough to reply to my questions. You can read her full e-mail, but the three most important points are these: First, General Counsel Ted Mallo believes that "GINA deals with gathering DNA for health insurance purposes" so genetic testing for background checks is permissible. Second, the school has not yet figured out how it will actually do DNA background tests. Third, the reason for the policy is: "DNA testing was included in the policy because there have been national discussions that indicate that in the future, reliance on fingerprinting will diminish and DNA for criminal identification will be the more prominent technology. By including it in the policy we have the flexibility to match the technology if the Ohio State Highway Patrol makes changes to its system."

Update 6:15 p.m. ET Wednesday: I just heard back from William Rich, a law professor at the University of Akron who teaches constitutional and criminal law, who I contacted on Monday. His view of the DNA testing policy: "The Faculty Senate was not consulted about this policy. It wasn't until just now that I became aware of it. Having now read the policy, I think it goes far beyond any imaginable justification for requiring DNA samples from job applicants, and I wonder just what the rationale for it was. The university does employ police officers who have law-enforcement authority under Ohio law and agreements with local police departments. I can imagine that there might be a justification for requiring prospective UA police officers to submit DNA samples (although I'd still like to know more about the rationale for that), but a university regulation that allows the University administration complete discretion to require DNA samples from any job applicant strikes me as way too broad."

Addendum: I've fixed the link to the university's response. And here's a longer and more detailed response from Prof. Rich, which is even more critical of the DNA-sampling rule.

---

Declan McCullagh is a correspondent for CBSNews.com. He can be reached at [e-mail] and is on Twitter as declanm. You can bookmark the Taking Liberties site here, or subscribe to the RSS feed.

[mattwilliamsconsulting]

Please take a moment to sign the petition against this illegal policy. It's available here: http://www.petitionspot.com/petitions/universityofakrondna/

[wscothan]

Crucially, this a public employer demanding a DNA sample as a condition of employment. Thus it raises the US constitutional issue of an unreasonable search and seizure by the government. I am flummoxed that the ACLU spokesman didn't immediately see this. And I'm astounded that the university's general counsel let this get by him. If it were a private employer, it would be a closer call. I think inquiries by an employer of this nature are obnoxious and disgusting. But in this case, it's the government making the demand. It's unconstitutional on its face.

[cidaia]

Straw man of the year: every time there's a controversy about technology, some guy will always say "oh anyone who doesn't approve is just ignorant and uneducated, and doesn't really understand how the technology works".

In the 1940s and 1950s, the real balance of power between elites and ordinary Joes was such that a haberdasher could become President. Anyone could start a business.

Now, the balance of power has shifted so that massive corporations own toll booths straddling link connecting suppliers with consumers. The majority of Americans are experiencing a real and steady decline in their quality of life. And now their employers want the right to keep on file their DNA - for what purpose?

Why do they need DNA for a security check?

[cidaia]

excuse me "straddling the links" (typo)

[Pejackson77]

The article that you sited provides a long list of laws that prohibit the access of individual DNA, genetic and medical history from employers that can be used to unjustly adversely impact employees. Because of this, all medical and current background checks are conducted by a third party vendor, who are held to professional standards and subject to prosecution if they disclose any information that is not permissible under the law. That said, ever since they started mapping the human genome, reaching new heights after the first cloned sheep, legislation are legislation has been piled up to protect people from their own DNA. There is DNA is urine. If employers wanted to use DNA for malice and actually had access to the information, they could do it every time they required someone to "**** in a cut" (or when they require employees to take a health screening on WebMD -which has become a standard practice in any large company before enrolling in company offered health insurance).



For those who say its an invasion of privacy and it could be misused . . . people complained fingerprint background checks were demoralizing and an attack on their integrity; people complained that urine drug testing would be used to check if a woman was pregnant or had reach menopause, as well as, to check for STD and genetic defects; WebMD opposition currently insists that companies will use the information to target individuals who are over-weight, have high blood pressure or cholesterol, depressed or occasionally enjoy a frothy beverage or fatty foods in excess. But misuse of medical and background check information is not prevalent, and there has not been enough evidence to substantiate that progress in background check technology has opened a flood gate of human rights and privacy violations.



I find this to be more of a case of people afraid of new technology that they don't understand being used in innovative ways. After all, when revolving current electricity (the difference between AC and DC) was first generated by humans, the opposition created the electric chair and started frying convicted felons as public spectacles to demonstrate the dangers of AC electricity. What was more dangerous, the electricity or the those in opposition to the form of electricity. Quite frankly, when you consider identity theft and the alternative of using credit reports and database criminal record searches to identify criminals (try googling your own name), I would prefer you use something that is uniquely me such as my DNA to verify my background. Think about all the innocent people that have been detained, questioned for hours or refused access to board a flight because their name was similar to someone else in a DB. I would prefer taking my luck with a cotton-swab. Say Awwwwh!

[cidaia]

No, the problem is we DO understand the technology.

Your argument is full of straw men.

[dpeelmd]

GINA does not prevent your employer or insurer from obtaining your genetic test results IF a doctor orders a genetic test at a time when you are not seeking a job or insurance--in other words if the doctor orders a test at any other time!

This HUGE loophole in GINA essentially puts YOUR genetic tests into the hands of employers and insurers who can use and will use that information against you. Originally the bill was designed to keep genetic tests from falling into the hands of those who could use the information to discriminate against you. But that key protection was eliminated in the final bill.

Deborah C.Peel, MD
Founder and Chair, Patient Privacy Rights--the nation's leading health privacy watchdog.

www.patientprivacyrights.org Sign up for e-alerts, learn what you can do!

[dpeelmd]

GINA does not prevent your employer or insurer from obtaining your genetic test results IF a doctor orders a genetic test at a time when you are not seeking a job or insurance--in other words if the doctor orders a test at any other time!

This HUGE loophole in GINA essentially puts YOUR genetic tests into the hands of employers and insurers who can use and will use that information against you. Originally the bill was designed to keep genetic tests from falling into the hands of those who could use the information to discriminate against you. But that key protection was eliminated in the final bill.

Deborah C.Peel, MD
Founder and Chair, Patient Privacy Rights--the nation's leading health privacy watchdog.

www.patientprivacyrights.org Sign up for e-alerts, learn what you can do!

[dpeelmd]

GINA does not prevent your employer or insurer from obtaining your genetic test results IF a doctor orders a genetic test at a time when you are not seeking a job or insurance--in other words if the doctor orders a test at any other time!

This HUGE loophole in GINA essentially puts YOUR genetic tests into the hands of employers and insurers who can use and will use that information against you. Originally the bill was designed to keep genetic tests from falling into the hands of those who could use the information to discriminate against you. But that key protection was eliminated in the final bill.

Deborah C.Peel, MD
Founder and Chair, Patient Privacy Rights--the nation's leading health privacy watchdog.

www.patientprivacyrights.org Sign up for e-alerts, learn what you can do!

[cidaia]

This can be viewed as a powerful statement on the University of Akron - an institution that obviously does not respect privacy, nor does it value ethics.

I hope that if this is established as a precedent, more employees will recognize their moral obligation to refuse to go along with this plan, and I hope that students and others will recognize that the University of Akron is not the sort of institution people should want to do business with, or trust.

[ksholm]

Good to know that Babbitt is still alive and well in Zenith.
Why, this is be a real boost for America -- and Ohio!
You bet his pal Virgil Gunch and his Good Citizens' League would approve of it. Even Silent Cal would put in a good word in its favor.

(From the article): "But, says ACLU of Ohio executive director Christine Link, there are other problems with Akron's policy. 'The university does not have the right to use discretion (in DNA testing), because discretion typically leads to racial profiling,' she says. 'As one of my colleagues quipped, " 'All the kitchen help get DNA samples, but none of the faculty.' " 'It's divided by class and money and education... From a civil liberties perspective, we see that to be extremely dangerous, unfair, and potentially unlawful'."

But, Christine, the Babbitt's of Zenith would disagree and this is their territory:

"All of them perceived that American Democracy did not imply any equality of wealth, but did demand a wholesome sameness of thought, dress, painting, morals, and vocabulary." (Babbitt, Chapter 34; Lewis, Sinclair)

[missme4]

Only ONE employee resigned? Why doesn't that surprise me. You wonder why all of your rights and freedoms are being taken away? Hardly anybody fights back. All I see in america is weakness and fear.