by Lori Andrews

If you're applying for a job at the University of Akron, you may have more to worry about than the old adage of publish or perish.  Whether you want to work as a secretary or a tenured professor, a new university policy empowers the college to require job applicants to submit DNA.  Laurie Massie, a spokesperson for the University of Akron, told CBS News that the board decided to include DNA testing in the policy because "there have been national discussions that indicate that in the future, reliance on fingerprinting will diminish and DNA for criminal identification will be the more prominent technology." 

But Massie’s statement obscures the difference between a DNA sample and a fingerprint.  Taking DNA is more intrusive, even if it is just done through a cheek swab.  A recent criminal case, Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009), found that police exceeded their authority when they subjected an unwilling suspect to a cheek swab.  Plus, DNA contains far more information than does the fingerprint.  Testing an applicant’s DNA could provide information about whether the applicant, while healthy now, was likely to develop a costly-to-treat genetic disease.  Even if the DNA was only used to see if an applicant’s DNA was in the federal DNA databank because he or she had committed a crime, adding employment searches to the investigative searches of the databank would result in even greater backlogs than currently exist.

The University of Akron's actions also raise concerns about loopholes in current laws.  The federal Genetic Information Nondiscrimination Act (GINA), which goes into effect on November 21, 2009, prohibits discrimination in employment based on the results of genetic tests.  But imagine how difficult it would be for a budding philosophy professor to prove that someone was chosen over him for a job because of his genetic propensity to illness.  The university could point to other factors (in education and subject matter) to explain why another person was chosen for a teaching job.

The University of Akron's counsel, Ted Mallo, has opined that the school's policy will not violate another provision of GINA, that employers can't require applicants to undergo genetic testing.  Mallo sent a letter to the Faculty Senate recommending that the language in the background check policy referring to DNA testing be eliminated and replaced with: "The candidate may be required by the law enforcement agency to provide additional information which is needed by the law enforcement agency for purposes of conducting the criminal background check."

But there are other legal hurdles for the Akron policy.  Ohio's forensic DNA statute says that the database may be used in three circumstances: for parentage analysis pursuant to relevant state laws; for quality control and identification research and protocol development; or for the "administration of criminal justice."  Ohio Rev. Code Ann. §§ 109.573(B)(2)(a)-(c)(2009).  Despite the fact that the University of Akron police have law-enforcement power under Ohio law, checking to see whether a job applicant lied on his or her application about past crimes is an employment purpose, not a law enforcement purpose, and should not be allowed under the statute.

William Rich, a professor of Constitutional and Criminal Law and also Vice-Chairman of the University of Akron's Faculty Senate, introduced a resolution to the Faculty Senate stating that the new regulation poses a "serious threat" to University employee's privacy.  The Faculty Senate unanimously adopted the resolution, which stated in part: "[t]hat the Faculty Senate respectfully request, and does hereby request, that the Board of Trustees reconsider its adoption of regulation 3359-11-22(B)(3) [authorizing DNA collection]". 

An adjunct professor at the university, Matt Williams, quit mid-semester to protest the DNA policy.  And now, after the negative publicity the university has faced, the general counsel is suggesting that the policy be changed.  But the Board of Trustees has not formally revoked the regulation.

The policy does indeed violate privacy.  And, if it is left in place, it could also be the start of a slippery slope in which DNA testing becomes our passport into daily life.