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.