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 declan@cbsnews.com and is on Twitter as declanm. You can bookmark the Taking Liberties site here, or subscribe to the RSS feed.
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    Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.

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