After GINA, NINA? Neuroscience-Based Discrimination in the Workplace

INTRODUCTION 934 I. GENETIC INFORMATION NONDISCRIMINATION ACT OF 2008: LEGISLATIVE HISTORY, FINDINGS, AND MOTIVATIONS 936 A. From the Human Genome Project to Genetic Testing: Uncovering the Human Blueprint 937 B. Imperfect Prediction and Employer Misuse 940 C. Inadequate Existing Federal Statutory Protections 943 D. Text of GINA 947 II. THE POTENTIAL FOR PREDICTIVE NEUROIMAGING-BASED DISCRIMINATION 949 A. From the Human Brain Project to Predictive Neuroimaging: Uncovering the Human Brainprint 950 B. Imperfect Prediction and Employer Misuse 959 C. Inadequate Existing Federal Statutory Protections 961 III. ADDITIONAL CONSIDERATIONS RELEVANT TO NEUROSCIENCE-BASED DISCRIMINATION: NEUROENHANCEMENT 967 IV. NEURO INFORMATION NONDISCRIMINATION ACT 970 A. Title I: Neuro Information, Employer Acquisition, and Discrimination 971 B. Title II: Neuroenhancement and Employment Discrimination 975 CONCLUSION 977 INTRODUCTION In 1990, the Human Genome Project ("HGP') was formed to decipher and sequence the human genome, to develop new tools to obtain and analyze genetic data, and to make the information widely available.1 Researchers completed the HGP in 2003 with the genetic technology and resources developed providing new opportunities for medical progress.2 In particular, discoveries about the genetic basis of illness and the development of genetic testing allowed for earlier diagnosis and detection of genetic predispositions to disease.3 These advances, however, also gave rise to the potential misuse of genetic information, as revealed by genetic testing, to discriminate against and stigmatize individuals.4 More specifically, for example, they created the opportunity for financially motivated employers to use genetic information to avoid employing workers likely to take sick leave, file for workers' compensation, or use health benefits. To fully protect the pubhc from discrimination and allay any concerns about the potential for discrimination, in May 2008, President George W. Bush signed the Genetic Information Nondiscrimination Act5 ("GINA") into law. This long-awaited statute paved the way for individuals to take full advantage of the promise of personalized medicine without fear of discrimination on the basis of genetic information acquired by employers.6 The field of neuroscience is following in the footsteps of genetics. Large research initiatives, such as the Human Connectome Project, are currently underway to map the axonal connections of the human brain and to correlate these circuits with disease and behavior.7 Discoveries about the neurological bases of disease have already allowed neuroscientists to use patterns of brain structure and function, as revealed by neuroimaging, to identify neural correlates of disease and predict an individual's predisposition to future disease.8 Most importantly, however, this neuro information is susceptible to the same forms of employer misuse as genetic information.9 In fact, Donald Kennedy, neurobiologist and once editor-in-chief of Science, has already made reference to a "brainome," similar to a "genome": Far more than our genomes, our brains are us, marking out the special character of our personal capacities, emotions and convictions. …