A New Kind Of Discrimination
“To make a distinction in favor of or against a person on the basis of the group or class (or now, genes?) to which the person belongs, rather than according to merit.” With technology ever advancing, what will come out of knowing all about one’s genetic make-up and potential future? Health insurance will most likely always be increasing. With Employers often paying the majority of an employee’s insurance premium, how will employment be affected by health insurance discrimination? These questions and others are on the minds of people keeping up with the Human Genome Project and discrimination laws. First, though, we have to find out what current law allows for, then the possibilities of what can happen, and lastly what needs to be done.
“Since enactment in 1983, Minnesota is the only state with a statute that limits an employer’s access to an employee’s non-job-related medical information.” This is important to note because this shows that there are no current laws in most states keeping an employer from knowing certain medical information, which can cause discrimination without the applicant’s knowledge. Although, At least thirteen states have enacted considerably varied laws providing additional protections against discrimination in the workplace on the basis of genetic information. No current federal statute explicitly addresses genetic discrimination by employers. However, existing federal laws, which are designed to prohibit discrimination in employment based on certain disability characteristics that may be linked to genetic traits, provide protections against genetic discrimination. In particular, the Americans with Disabilities Act (ADA) should be interpreted to prohibit discrimination in employment based on genetic characteristics. “The ADA contains broad language prohibiting discrimination against a qualified ‘individual with a disability’ in hiring, promotion, discharge, compensation, and other terms and conditions of employment.” It is clear that the ADA covers individuals who have a genetically related illness or disability once it becomes manifest and substantially limits a major life activity. Moreover, little debate exists over the fact that the ADA covers individuals who have a prior record of a genetically related disability, for example, someone who has recovered from cancer. And yet, courts have not yet determined whether the ADA should be understood to restrict discrimination on the basis of a diagnosed, potential, genetic condition or trait that has not developed. The waters will however probably be tested within the courts in the next six years as the Human Genome Project develops fully.
Without current narrow definitions of genetic discrimination an employer can possible get away with a lot. Lets say a health insurance company states that persons with certain genetic disorders can be either dropped or have an extraordinarily large premium. Then they go on to say that any company that has group health insurance through them will have a large increase in the overall premium if any of the individuals (employees) in the group has one of these genetic defects. The employer would be inclined to discriminate against these persons to keep from paying the extra premium. Also there is the possibility of health insurance being eliminated altogether. If it is known who is going to get sick and who is not, what good is an insurance company? Only people who are going to get sick will want to buy health insurance. A company would not sell health insurance to a person who they know ahead of time will get sick and huge medical bills is inevitable.
So, what needs to be done to protect the future? A national health insurance plan is one way. But, this is not easily done especially in the United States. Americans like to be able to pick their own doctor. Well-to-do people like to be able to pay for the best possible medical care they can. Doctors like to have the freedom to make a large amount of money if they can. Americans also enjoy not standing in a long line waiting for care, which is evident in countries that have a national health care plan. There would also be a large loss of jobs if private health insurance companies were eliminated. There is serious doubt that a national health care plan will ever fly in the United States. So, instead there needs to be laws and regulations on what employers and health care providers can discriminate against. Genetic discrimination needs to be treated like gender and race discrimination. A number of these laws will probably come from future case laws. There needs to be a protection of privacy from genetic knowledge.
In conclusion, the world should go through a lot of changes in the next few years. Diseases may be cured, people may know their fate at a young age, and a new form of discrimination may be developed. What ever comes out from the Human Genome Project, there most likely has to be new regulations and restrictions on other forms of discrimination to protect our way of life.
4.Copyright (c) 1998 Boston University School of Law. American Journal of Law & Medicine, 1998, 24 Am. J. L. and
Med. 399, 11624 words, ARTICLE: Protecting Genetic Privacy by Permitting Employer Access Only to Job-Related
Employee Medical Information: Analysis of a Unique Minnesota Law, Mark A. Rothstein*, Betsy D. Gelb**, Steven
5.Copyright (c) 1998 Boston University School of Law. American Journal of Law & Medicine, 1998, 24 Am. J. L. and
Med. 443, 30147 words, NOTES AND COMMENTS: An Analysis of Genetic Discrimination Legislation Proposed
by the 105th Congress, Jeremy A. Colby*
Word Count: 819