A Third Cheer for Genetic Testing

The short post that I did on genetic testing earlier this week has provoked a further response from Daniel Solove (which can be found at http://www.concurringopinions.com/archives/2005/10/a_reply_to_rich_1.html) to my last posting. It further reveals the weakness of the case on behalf of any law that seeks to prohibit an employer from relying on genetic information.

Solove argues that genetic information is “sometimes” different from other forms of information because it only indicates a higher risk of a disorder, not that the person has it. True enough, but the point cuts the opposite way. The answer to the question “did you mother have breast cancer” correlates with genetic information as well, and it too only indicates a higher risk not a certainty that her daughter will get the disease. But all insurance works on risk. That information should not make the employer instantly hand out a pink slip. It is one factor among many to be taken into the overall assessment. The insurance could be supplied, but in exchange for an additional premium that reflects that additional risk. Or the health insurance could be supplied subject to an exclusion for the risky condition. Judgments like that are made all the time in the insurance business, and there is no reason why they cannot be made with the processing of genetic information.

Solove in effect concedes as much when he notes that it may well be rational for an employer to discriminate on the strength of that information, only to contend that it is not rational for society to allow that discrimination. But here there is no conflict of interest between social welfare and the welfare of the firm. There is no deception of third persons, and no negative externality of any sort that comes from the accurate pricing of risk within the firm.

Nor does it make the case to make appeals to freedom and autonomy as countervailing values. These are universal norms that protect employers as much as they do employees. There is nothing in the ideal of personal freedom or autonomy that requires one individual to offer a subsidy for the health care of a second. The entire notion of freedom and autonomy always stresses “the like freedom” of other individuals. Solove’s revised notion of autonomy and freedom, but only for some, means additional duties imposed others. Yet no justification for that imposition on employers is given.

The appeal to privacy is subject to similar limitations. No doubt privacy covers the case where individuals want to snoop into the private lives of others. But here the deal is quite simple: either you waive your right to privacy or you will not receive a job from me. People waive their liberties when they agree to work for another individual. They can, if they choose, waive their privacy rights as well.

In sum, autonomy, freedom and privacy are cardinal virtues of the legal system. But they all cut against a prohibition against seeking genetic information. All too often we hear pleas that new technologies require revisions of older rules. Here is one case where the risk lies in novelty. The old rules work fine.

Comments

[Vic]

Thank you for better articulating what I tried to in the comment section of "Two Cheers for Genetic Testing"; your fourth and fifth paragraphs here are particularly useful.

[JackD]

The real practical issue that arises appears to be the availability of health insurance. As long as it is tied to employment, one can expect employers, "acting rationally" to at least potentially discriminate among job applicants based on the liklihood of their increasing the employer's insurance costs.

A possible solution would be to untie health insurance from employment perhaps through a national healthcare system.

Would you continue to object on the grounds that no one individual or group of individuals should be required to pay for the healthcare of others, in this instance through the mechanism of taxation? Are you advocating for an each man for himself law of the jungle approach to society?

[A (hopeful) UC undergrad applicant]

Mr.Epstein, discriminating with regard to genes may already be effectively prohibited, vis a vis racial anti-discrimination laws. Say asians suffer from Alzheimer's more than whites. Discriminating on that basis constitutes a "disparate impact" on Asians. Executing such a test without extensive validation of their merits may be illegal according to the Court's decision in Griggs v. Duke Power Co.

JackD-That does not argue for national healthcare, but national health insurance. I think that the best solution would be to return to a simple pay per visit/treatment system, to restore the direct cost of medicine, and not the indirect via health insurance. I do not know what circumstances gave rise to the current setup, but steps may be taken regardless to lower the cost of healthcare, like disposing of the credentialism afflicting much of government regulation. National health insurance brings with it bad incentives, and is, in general, executed poorly.

[Bruce]

It seems to me that at least one question to ask here is who should bear the risk of genetic predispositions to early death or disability or higher medical costs: should such risks be borne by the individual alone, or should a larger segment of society, including insurers, employers, lenders, financial institutions, contractors, merchants engaging in loss-leading sales, etc. bear some of that risk? Do we want a legal regime in which all entities engaging in long-term transactions have both the legal right and the rational self-interest to essentially shut out genetically sub-par individuals from those transactions? I think a right to privacy in this context captures an intuition that the costs of genetic predispositions should be spread, and I'm not prepared yet to abandon the intuition.

[Adam]

In a regime allowing genetic testing, should we require that any discrimination be rational? If a job candidate possesses a benign genetic condition, an employer may still choose to bypass that candidate in favor of a more "pure" person (this is no less rational, or less likely, than racial or gender discrimination, which certainly exist). Must we then require employers to show a business justification for their discrimination in order to avoid the externalities associated with blanket discrimination? It seems that trying to draw a line differentiating "fair" from "unfair" discrimination could be a messy business.

[Adam]

In a regime allowing genetic testing, should we require that any discrimination be rational? If a job candidate possesses a benign genetic condition, an employer may still choose to bypass that candidate in favor of a more "pure" person (this is no less rational, or less likely, than racial or gender discrimination, which certainly exist). Must we then require employers to show a business justification for their discrimination in order to avoid the externalities associated with blanket discrimination? It seems that trying to draw a line differentiating "fair" from "unfair" discrimination could be a messy business.

[Adam]

In a regime allowing genetic testing, should we require that any discrimination be rational? If a job candidate possesses a benign genetic condition, an employer may still choose to bypass that candidate in favor of a more "pure" person (this is no less rational, or less likely, than racial or gender discrimination, which certainly exist). Must we then require employers to show a business justification for their discrimination in order to avoid the externalities associated with blanket discrimination? It seems that trying to draw a line differentiating "fair" from "unfair" discrimination could be a messy business.