Distinguishing speculative and substantial risk in the presymptomatic job applicant: Interpreting the interpretation of the Americans with Disabilities Act direct threat defense

Advances in genetic and medical technology have created a growing class of people requiring protection under the Americans with Disabilities Act (ADA) . The presymptomatic, or "healthy ill," are individuals who are currently i n 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 d isease or injury. The presymptomatic are protected from employment discrimi nation under the ADA, which recognizes that disability discrimination may r esult from the perception of disability, even when no actual disability exi sts. The ADA specifically prohibits an employer from finding applicants unqualif ied solely because they have predispositions for disease or injury that may be triggered by the work environment. However, as a protection to employer s, the ADA's "direct threat" defense allows an employer to require, as a va lid employment qualification, that a job applicant not pose a direct threat to the health or safety of others. The Equal Employment Opportunity Commis sion (EEOC), in drafting regulations to implement the ADA, expanded the def inition of "direct threat" to encompass "a significant risk of substantial harm 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 r efusal based on speculation of future harm. She argues that the determinati on of whether a medical or genetic precondition will evolve into a future r isk of harm necessarily involves speculation. This is because the disease o r injury has not yet manifested, and the individual has no medical or emplo yment history on which to draw. The EEOC's interpretation opens the door to paternalism and discrimination, thus depriving the presymptomatic of the A DA's protection. Wong examines the policy concerns behind the ADA direct threat defense and argues that the EEOC's expanded interpretation diverges impermissibly from the ADA's original meaning and intent. She further argues that the EEOC int erpretation fails to provide for the presymptomatic, because predisposition s, 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 otherw ise qualified presymptomatic individuals. With a somatic predisposition, th e existence of an actual and measurable condition may allow for individuali zed diagnosis and prognosis of an applicant. In such cases, the status of t he individual's predisposition may be compared with current medical knowled ge of the condition to satisfy the ADA's requirement of an objective, indiv idualized assessment of risk. A diagnosis of a genetic predisposition, howe ver, reveals much less about an individual's prognosis. The individual's pr edisposition has not manifested itself except by the presence of a gene, an d possession of the genes for a condition is no guarantee that the conditio n will ever develop. Further, the current stare of genetic technology has n ot yet advanced to the stage at which it will be a reliable indicator of su bstantial or imminent risk. Because a presymptomatic individual has not pre viously experienced any symptoms, there is no real basis, short of speculat ion, on which to disqualify such an individual. Thus, when an employer uses a genetic predisposition to disqualify an individual, this action must con stitute discriminatory speculation under the ADA. Wong. concludes that if c ompetent medical opinions differ on an otherwise qualified, presymptomatic individual's prognosis, the individual should be trusted to choose to assum e a future risk himself.