Do You Want Employee DNA?

Our DNA is what makes each of us unique.  It also holds secrets.  It can tell us where may suffer from breast or colon cancer, where our ancestors are from, and what eye color our kids could have.  All of this is very, very cool.  But do we need to know our employee’s DNA?

Congress took action in 2008 to prevent DNA and family medical from getting into the hands of employers.  When the Genetic Information Nondiscrimination Act (GINA) passed in 2008, well over 90% of the House and Senate voted in favor.  GINA prevents employers from obtaining and using this information to make employment decisions.  The EEOC enforces GINA, working to prevent harassment, discrimination, and even retaliation.  With a bill currently before Congress, some of this could change.

As Jon Hyman recently explained, Congress is considering a bill that will allow employers to ask for personal and family medical histories, including DNA, provided the employee gives the information voluntarily.  If the employee refuses, he could not receive the 30% premium reduction incentive.

Imagine what a devil-on-a-shoulder of an employer could say if it had employee DNA and family medical histories.  “Don’t promote (or recognize) her, she’s got BRCA1, and her mom died of cancer.  She’s too expensive.” Or when a shoulder devil learns about an employee with a special needs child who has had several heart surgeries.  “Uff. That family’s health care costs are too high.  He’ll probably need so much time off and cost us a lot.”  While I’d like to believe this wouldn’t happen, it is exactly what plaintiff attorneys suspect will happen.

There already are services that can help reduce health care costs using employee DNA.  Take Newtopia.  Newtopia matches employee DNA, a fitness tracker, dietary log, supplements, and personalized coaching to reduce employer health care costs.  According to Newtopia, it really works.  For one employer, Newtopia’s program saved an employer over $1,400 per employee per year.  That’s a lot.  Something some employers can’t ignore when health care costs are skyrocketing.

Yet, we don’t want our employer to have our DNA.  I recently used Newtopia’s marketing video in a presentation to 30 HR executives.  When I looked at their reactions, several had their mouths agape.  I get the same reaction when I share this information with employment attorneys.  They know that employee DNA is sensitive and could create problems.  One, that many of them don’t want.

Titanium Spines & Harassment

Uber, Kay Jewelers, Dollar General, the Oscars.  Everywhere we look these days, sexual harassment is in the news.  The claims are at times horrific, devastating, and utterly amazing.  We have to do better.  We need to grow a titanium spine and deal with these issues before they take down our organizations.

Step Up

In the latest sexual harassment news, HR failed.  HR helped sweep clear harassment under the rug at Uber according to a female engineer.  How could hundreds of women allege harassment at Kay and Jared, and HR not smell a whiff of it?  If the allegations prove true, there’s no sugarcoating this.  HR in these organizations failed to address harassment and by extension, failed the oodles of super, duper HR people with titanium spines who would have done better as now our reputations have taken a hit.

Our jobs involve knowing our employees, developing relationships of trust, and then responding when what’s happening is a risk to our organization.  When HR doesn’t respond, it puts the organization at even more risk.  These cases are an example of that risk.  No matter what the legal consequences (the jewelry conduct is old and Uber might not be sued), the PR liability alone is not nothing.

I get it.  We have to pick our battles.  Sometimes fighting every battle means we go along when there’s risk to the organization.  But sexual harassment is always a battle to pick.  Steel (or titanium) yourself.  We now have countless examples to point to that will support us in fighting harassment when we see, hear, or otherwise learn of it.

Have a Good Policy

Sexual harassment policies have existed for decades now and can protect us.  Good policies define harassment, give examples, and outline what an employee should do.  Sometimes, these policies start by requiring employees “politely and firmly” ask the alleged harasser to stop.  This “please stop” provision comes before the employee is asked to report the conduct to a manager. While telling the harasser to stop indicates that conduct is unwelcome, it places a burden on the employee to take action when that burden really belongs to the employer.  As an organization, we want to know when sexual harassment happens.  Ask employees to tell you without requiring them to deal with it themselves.

Train

Train managers about your policy, sexual harassment in general, and the risks of doing nothing.  The training should challenge managers to identify harassment, ask them what they would do in these situations, and then allow them to ask as many questions they have.  Putting managers in scenarios is the best way to train them to do what the organization needs.

Seek Help

“If someone outside the organization says it, they’ll believe it.”  No doubt, when you pay extra for the advice, you tend to heed it.  So, find someone outside the organization to help support your position.  Attorneys have the magic fairy dust of attorney-client privilege.  Use us.  We can investigate, train, outline risk, and help sound an alarm when one needs sounding.  We want to help your organization be better.

Last month, I gave a presentation on employment law to an HR class at a prominent university.  One of the students asked if a startup could have a culture that allowed casual sexual harassment and just have employees sign a contract that they were okay with it.  It took every ounce of restraint I had not to dress him down in front of all his classmates.  Instead, firmly and politely pointed to American Apparel as an example of an organization brought to its knees because of a culture rife with harassing conduct.  I hope he took that as a cautionary tale, but I fear it fell on deaf ears.  It’ll be up to the HR people he meets to challenge or oust him. I bet they will.