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October 21, 2005

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» Genetic Testing: Further Debate with Richard Epstein from Concurring Opinions
Richard Epstein has posted a reply continuing our debate over whether employers should be able to use genetic testing information to make employment decisions regarding employees. Here are the posts in our debate so far: 1. Solove, IBM vs. NBA:... [Read More]

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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.

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