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Saturday, President Bush devoted his national radio address to declaring
his opposition to "genetic discrimination" — that is,
the use of genetic information by employers or insurers in deciding
whether to hire someone and whether to issue a person a policy or
charge a higher premium. Bush said he will work with Congress "to
shape the legislation that will make genetic discrimination illegal."
Discrimination
based on one's genetic predisposition to an illness does raise some
tough questions, but President Bush's reasons for banning such discrimination
are very unpersuasive.
First he says:
"Genetic discrimination is unfair to workers and their families.
It is unjustified — among other reasons, because it involves little
more than medical speculation. A genetic predisposition toward cancer
or heart disease does not mean the condition will develop. To deny
employment or insurance to any healthy person based only on a predisposition
violates our country's belief in equal treatment and individual
merit."
Employers and
insurers play the odds. There are many situations — probably most
of them, in fact — where they cannot be 100 percent sure in their
prediction about a future employee's performance or an insured's
health. A company cannot be certain that an applicant's poor college
transcript means he will be less productive than another applicant
with better grades, and an insurance company can't be positive that
a driver with a series of DWI convictions will drive drunk again.
So it makes no sense to assert that decision-making based on probabilities
is "unjustified" because it is little more than "speculation."
Here is Bush's
other justification: "In the past, other forms of discrimination
have been used to withhold rights and opportunities that belong
to all Americans. Just as we have addressed discrimination based
on race, gender and age, we must now prevent discrimination based
on genetic information."
It is silly
to declare that discrimination based on race equals discrimination
based on sex equals age discrimination equals genetic bias. The
four have very little in common historically, constitutionally,
morally, or economically. The case for legal intervention, and especially
federal intervention, is progressively weaker for each (although
it's a close call between age and genes).
At least Bush
is implicitly acknowledging the weakness in the Equal Employment
Opportunity Commission's position that the Americans with Disabilities
Act bans genetic discrimination. As this column discussed last
February, that assertion is hard to square with the Supreme
Court's 1998 decision in Bragdon v. Abbott. So, if
genetic bias is to be banned, Bush is right that Congress will have
to pass a new statute.
But should
it? The answers that Bush gives are unsatisfying, but perhaps there
are some better ones out there. Let's see.
It makes sense
to analyze insurers and employers separately. Let's suppose that
we pass a law that bars insurers from considering genetic information
that helps predict longevity and future health. This means that
insurers will write more policies that result in them having to
pay out more money, and so some will charge higher premiums and
others will go bankrupt. There will be fewer insurance companies,
which is bad for consumers, and also fewer people will be able to
afford insurance. It would make more economic sense for the government
simply to agree to reimburse people with genetic predispositions
that insurers find unattractive for the higher premiums that they
have to pay.
The situation
for employers is more complicated. To the extent that the reason
a company doesn't want to hire someone is because of the higher
group insurance or workmen's compensation rates it will have to
pay, the problem is better solved — again — by the government voucher
discussed above.
But employers
might also not want to hire or promote someone for other reasons,
particularly the likelihood that certain lines of work might be
bad for an employee's health, or that an unhealthy employee is likely
to be less productive.
It is hard
to fault an employer for wanting to avoid putting employees in harm's
way. Indeed, one can imagine the anti-corporate attacks if the company
failed to use genetic testing in this situation: "Ralph
Nader, Mother Jones magazine, and 60 Minutes all accused
Globatron today of callously refusing to undertake the simple precautions
necessary to ensure that employees are not given work that can kill
or cripple them," etc. Humane considerations and bad PR aside,
such a failure may increase the company's liability down the line
— not only to the employee, but to other employees if they are somehow
injured as a result of some debilitating condition.
It is also
hard to fault an employer for wanting to hire the most productive
employee possible. Companies are not charitable operations, after
all, and there are plenty of widows and orphans — and labor unions
and retirees — who rely directly or indirectly on shareholder earnings.
A law that requires employers to hire/not fire people they have
reason to believe will be less productive is essentially a law requiring
a charitable payment by X to Y. That's fair to Y, all right, but
not to X — and also, by the way, not to the more productive employee
Z, who now has to look for a job elsewhere.
There is an
understandable and strong impulse to resist firing or not hiring
people for things that are not their fault and are beyond their
control. On the other hand, we do it all the time. If an employee
turns out to be incompetent, we accept the fact that the employer
may fire him, even if the employee is doing his best. Good health
is frequently necessary for good performance, and it can be expensive
to train employees who unexpectedly must be replaced on short notice.
Genetic testing may also be able to tell us not only about an employee's
disabilities, but his abilities as well.
Incumbent employees
who have shown themselves to be valuable, and applicants whose past
record shows them to be promising, will often be able to overcome
a bad gene test, just as candidates with solid records can overcome
bad performances on standardized written tests. It will depend on
the employer, and the job, and the record, and the genetic predisposition
at issue. Under these circumstances, especially when what is involved
is a rapidly changing area of science and technology, it makes little
sense for the federal government to mandate a one-size-fits-all
approach for all situations.
Yet that is
where President Bush now wants to take us. It seems very unlikely
that the he, the EEOC, the courts, or Congress will be better able
to reach a reasonable resolution of the issues raised by genetic
testing than by allowing the private sector to grapple with them.
Disturbing questions are raised when science enables us to see further
into the future than we'd like, but the right answer cannot be for
the government to force its citizens to pretend that they can't
see what in fact they can.
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