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Every decade or so, a new area becomes the hot topic in employment law. Roughly every 10 years the focus shifts from one protected class of employees to another. In the 1960s the focus was on race, in the 1970s on sex, in the 1980s on age and in the 1990s on harassment and disabilities. In the first decade of the 21st century, the focus appears to be on sexual orientation. We expect this trend to continue, although other areas, such as genetic disorders, appear to be on the horizon. SEXUAL ORIENTATION AND THE NEW JERSEY DOMESTIC PARTNERSHIP ACT In Oncole v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the United States Supreme Court held that same-sex harassment was actionable under Title VII of the Civil Rights Act of 1964 (Title VII) as unlawful discrimination based upon sex. Title VII, however, does not protect against discrimination based solely upon sexual orientation. The Circuit Court decisions subsequent to Oncole have left open the question concerning when same-sex harassment will be judicially perceived to be unlawful discrimination based upon sex under Title VII as opposed to sexual orientation, which is not protected. There is no such confusion under New Jersey law since same-sex discrimination, as well as discrimination based upon sexual orientation, are prohibited by the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 et seq. The Oncole decision, however, was a precursor to issues currently in the news dealing with same-sex marriages and domestic partnerships. Same-sex marriages have been the focus of much legal and media attention over the past year. In February of 2004, the Massachusetts Supreme Court, in a 4-3 decision, struck down a ban on gay marriages as unconstitutional. In recent months, there has been extensive news coverage of same-sex marriages in other locations across the country. Not to be left behind, the New Jersey Legislature recently enacted the Domestic Partnership Act (DPA), which became effective on July 11, 2004. The act provides legal rights and protections, under certain circumstances, to same sex couples. Domestic partnership status is also granted to qualifying unmarried opposite sex couples over the age of 62. Although the scope of DPA extends beyond the reach of employment matters, certain provisions of DPA are of significance to employers. Specifically, DPA includes amendments to LAD, granting protected status to domestic partners. While LAD prohibits workplace discrimination based upon marital status and affectional or sexual orientation, domestic partners will be protected from unlawful discrimination in the workplace separate and apart from, and in addition to, these pre-existing protected categories. Given that LAD already prohibits discrimination on the basis of affectional or sexual orientation, it is unlikely that a significant increase in litigation will result from DPA’s amendments to LAD. However, employers should update their anti-harassment and nondiscrimination policies to recognize this new protected category. The DPA also contains several significant amendments to New Jersey’s health insurance laws. Generally, New Jersey will be required to provide dependant health coverage to domestic partners (excluding opposite sex, unmarried couples over the age of 62) to the same extent it provides coverage to spouses and other dependants of state employees. N.J.S.A. 52:14-17.26(2)(d)(1). Employers other than the state, such as municipalities, boards of education and the like, that participate in state-sponsored health plans may, but are not required to, provide dependant coverage to domestic partners. N.J.S.A. 52:14-17.26(2)(d)(2) and (3). The DPA also contains provisions relating to health insurance offered by private employers. The DPA will require health insurance providers to offer dependent coverage to domestic partners on the same basis as coverage is provided to spouses. If an employer chooses to provide health insurance coverage to domestic partners, private employers may require an employee to contribute a portion or the full amount of the cost of dependant coverage under a health insurance plan. N.J.S.A. 34:11A-20(a). The DPA, however, does not require a private employer to provide dependant coverage for an employee’s domestic partner. N.J.S.A. 34:11A-20(b). At first glance, one would assume that even though DPA does not require an employer to provide dependant coverage to domestic partners, an employer who does not do so would be exposing itself to liability under LAD. Presumably anticipating such an argument, DPA expressly carves out an employer’s decision not to offer dependant coverage for domestic partners from claims of unlawful discrimination under LAD. N.J.S.A. 34:11A-20(c). Although not required to extend health insurance coverage to domestic partners, employers may choose to do so for a variety of reasons, such as employee morale, recruitment and other similar business considerations. Employers that choose to extend insurance coverage to domestic partners should amend their health plans and establish a written policy concerning dependant coverage for domestic partners. In drafting the policy, employers should consider requiring proof of domestic partnership status, such as a copy of the Certificate of Domestic Partnership, as a precondition to coverage. GENETICS Employers would be wise to also make sure their employment practices and policies address lesser-known protected categories under LAD. It should come as no surprise to employers that race, gender, disability and age are protected categories under the law. What some employers may not know is that LAD also provides protection for lesser known, or at least less litigated, categories such as atypical heredity cellular or blood trait and genetic disorders. Under LAD, it is an unlawful employment practice for an employer to discriminate on the basis of genetic information. It is also unlawful to discriminate based upon an individual’s refusal to submit to a genetic test or refusal to make available the results of a genetic test. N.J.S.A. 10:5-12.11(a). Related to genetic traits, LAD also prohibits discrimination on the basis of an atypical hereditary cellular or blood trait, which includes sickle cell trait, cystic fibrosis trait, hemoglobin C trait, thalassemia trait and Tay-Sachs trait. N.J.S.A. 10:5-5(x). With the tremendous advances in science over the past few years, genetic testing of employees has become a subject of debate. We now have the ability to both detect latent genetic abnormalities and prevent certain health disorders. In the context of the workplace, genetic testing can be used to protect the health and safety of employees by identifying susceptibility to environmental factors or changes in an individual’s genetic material due to exposure to hazardous substances. Genetic testing in the workplace can take two forms: genetic screening and genetic monitoring. Genetic screening tests the genetic makeup of an individual for specified inherited characteristics. Genetic screening can be used to determine whether an individual possesses genetic traits that make that individual susceptible to specific environmental substances present in a particular workplace. On the other hand, genetic monitoring tests the effects of exposure to environmental hazards in the workplace. Genetic monitoring can be used to identify previously unknown hazards by uncovering evidence of genetic changes in a population of employees. Despite the potential beneficial uses, genetic testing can also be used to discriminate. For example, employers might refuse to hire, or decide to terminate, individuals based upon the results of genetic tests. Such decisions may lead to the unfair and improper result of employers taking adverse employment actions against individuals who are not disabled, may never exhibit any symptoms and who may always remain qualified for their job positions. Currently, there is no federal statute directly prohibiting discrimination in the workplace based upon genetic testing. There are, however, federal laws that touch upon the issue and could provide fertile ground for litigation. For example, the United States Equal Opportunity Employment Commission has concluded that genetic testing is a medical test limited under Americans with Disabilities Act (ADA), as are other medical tests. 29 C.F.R. Part 1630. Thus, the gathering of employees’ genetic information without their informed consent could arguably result in violations of the ADA. Discriminating against an individual on the basis of a genetic trait could also violate the ADA if that trait qualifies as a disability under the ADA or if the person is perceived as being disabled. The only present outright federal prohibition against employment discrimination based upon genetic information is Executive Order 13145 (2000), which prohibits such discrimination in federal employment. In 2003, however, the United States Senate unanimously passed the Genetic Information Nondiscrimination Act, which would prohibit discrimination based on genetic information in all areas of employment by all private employers of 15 or more employees. The act currently remains in the House of Representatives. Despite the absence of any clear federal law prohibiting discrimination based upon genetic traits, such discrimination is already unlawful under LAD as previously discussed. Moreover, LAD applies to all employers, regardless of size. CONCLUSION In light of the continuing rise in health insurance costs and advances in science leading to the discovery of more potential genetic disorders, it is easy to foresee that genetic disorders, along with issues involving sexual orientation, will be front and center as we move through the first decade of the twenty-first century. Adler is a partner and heads the employment law department of Cole, Schotz, Meisel, Forman & Leonard of Hackensack. Morea is an associate in the firm’s employment and litigation departments. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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