Secret Code: The Need for Enhanced Privacy Protections in the United States and Canada to Prevent Employment Discrimination Based on Genetic and Health Information

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Osgoode Hall Law Journal, ISSN: 0030-6185, Vol: 39, Issue: 1, Page: 77-116

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Florencio, Patrik S.; Ramanathan, Erik D.
article description
The collection of genetic and health information by employers for reasons that are unrelated to the health and safety of workers is an undue infringement of the right to privacy, and consequently should be firmly prohibited by statute. Comprehensive genetic and health information privacy requires the protection of at least three critical elements of the right to privacy-namely choice, secrecy, and confidentiality. While choice and secrecy protect the individual's right to privacy at the collection stage, confidentiality safeguards this right at the point of disclosure. Laws that focus on the inappropriate use of genetic and health information without addressing the act of collecting such information, as is the case with American laws prohibiting genetic discrimination by employers and others, fail adequately to preserve privacy and prevent discrimination. Existing laws that do address the collection of personal information, such as Canada's Personal Information Protection and Electronic Documents Act (PIPEDA), the general and statutory laws of Quebec, and recent Manitoba legislation are insufficiently explicit with respect to the legality of genetic and health information collection by employers.