As my initial contribution to the University of Chicago webblog, I have chosen to defend (surprise!) a position that is widely regarded as unfashionable—or worse. The right of an employer to rely on or engage in genetic testing to decide whether to make an offer to a potential employee, and what kind of offer to make if he decides to go ahead.
This issue is one that recently came to the fore with two unrelated developments, which illustrate the difficult problems that this issue raises. The first of these situations, which is especially close the hearts of Chicagoans, asked whether General Manager John Paxson acted properly when he insisted that the Chicago Bulls would not re-sign their (then) young center Eddy Curry unless he took a DNA test which the Bulls’ doctors thought was necessary to decide whether or not his heart arrhythmia posed a risk of death if he continued to play.
The point was far from academic because two noted basketball players, Reggie Lewis and Hank Gathers, died because of complications from such a condition. The Bulls’ offer was particularly ingenious because Paxson offered to pay Curry an annuity of $400,000 per year for 50 years if he flunked the test, which is a nice piece of change, although far less than the $32 million that Curry sought from his next contract. The legal questions were never brought to the fore because Curry refused to take the test and Curry joined the New York Knicks on a sign and trade deal. But don’t assume this meant that the Knicks did not probe into all the other information at their disposal before making the deal.
The second incident involves a story covered on Dan Solove's blog which pairs its discussion of the Curry matter with an analysis of the recent decision from IBM not to use genetic testing in evaluating the health risks of its current or prospective employees. As Solove reports, the letter from Sam Palmisano, IBM’s CEO took the lead on this question, by saying: “"Business activities such as hiring, promotion and compensation of employees will be conducted without regard to a person's genetics." No one questions that IBM was within its right not to look at certain forms of information in making its personnel decisions. But the harder question is whether it should be obliged to take this position, either under the current Americans with Disabilities Act, or under some future legal doctrine that would impose an explicit prohibition on the use of genetic information.
My part in this little drama dates to an article that I wrote eleven years ago which took a position that I still hold, namely, that in competitive markets employers should be allowed to ask any question that they choose, no matter how irrelevant, and employees should be allowed to decline to answer any question, no matter how germane. Richard A. Epstein, The Legal Regulation of Genetic Discrimination: Old Responses to New Technology, 74 B.U. L. Rev. 1 (1994). The purpose of this proposition is not to insure that both employers and employees engage in parallel acts of self-mutilation. Rather, the central point is that questions of what kind of information is relevant is very difficult to determine in the abstract, and there is little reason to think that the state has any built-in advantage in deciding which sorts of things should be allowed and which should be prohibited. So long as there are lots of employment alternatives (and even for Eddy Curry there were) then the state should allow competition to determine which information will be supplied in what cases. After all, Curry took a huge battery of examinations that probed deeply into his physical condition.
That prohibition on the use of genetic information has attracted a fair bit of academic criticism, and Solove duly notes articles by Paul Schwartz (Privacy and the Economics of Health Care Information, 76 Tex. L. Rev. 1 (1997)), and Pauline Kim (Genetic Discrimination, Genetic Privacy: Rethinking Employee Protections for a Brave New Workplace, 96 Nw. U. L. Rev. 1497 (2002)) that have taken me to task for my views. But why?
One argument is that people will shy away from finding out their genetic position if they are subject to the test. Don’t believe all this. By assumption, there is good reason to believe that the information that is acquired from genetic sources is of value not only to the employer but also to the employee. Suppose that a women has the gene that renders her susceptible to breast cancer, which if identified would allow for certain prophylactic choices. Does it really make sense to think that she would choose not to get that information if she had to disclose it to a prospective employer? Hard to believe that workers would take that kind of risk with their own lives. The point is doubly true because nothing says that the worker has to disclose a genetic condition and just stop. She is always allowed to add further information which indicates the steps that have been taken to counteract that risk, so as to ally the fears of an employer. The last thing that we need for these key decision is less information than more.
The larger point here is that genetic information is in principle no different from any other kind of information that can be asked about a given person, including the other medical exams of Eddy Curry. Does it really make sense to prohibit the use of genetic information that might explain why a person has shortness of breath and then allow the employer to look at medical records that reveal that condition. The claims of privacy are the same in both cases, and both should be rejected. Sure, you can keep anything quiet if you don’t want to get a job, but if you do, then the employer could require the disclosure in order to allow it to control its costs and to make intelligent decisions. Do we really want works with heart conditions to conceal their risk when a simple reassignment might forestall a catastrophic event?
Nor does it help to say that the information should be concealed because, as Kim suggests, a job is "more than merely an income stream; it is closely tied to identity, status and community." The argument proves too much, for it does not allow us to distinguish between genetic and other information. Pushed to its limit it could require anonymous hiring, which could work havoc with the identifies, status and communities of employers (some of whom are human) and other coworkers.
The real point here is that all these decisions should in the end be business not legal decisions. I think that Paxson did the right thing, and his sensible offer was well calibrated to take into account the adverse publicity that would have come his way if he had cut Curry off without so much as a nickel. The IBM decision is harder to understand because it makes so little sense in an unregulated market, even if we take image and good will into account. But this is not an unregulated market, and it could well be that IBM has decided (given its own situation) that it is better to have a bit more inefficiency in its employment decisions in order to gain a measure of regulatory relief. Dan Solove thinks that IBM should be commend for making this decision. I think that we have to suspend judgment: would the firm have taken this line if there had been no threat of legal liability at all?