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IBM vs. NBA: Using Employee Genetic Information

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6 Responses

  1. Paul Gowder says:

    Why can’t we treat genetic disorders just like disabilities under the ADA: prohibit discrimination except when the disorder really makes it impossible to do an essential function of the job w/ accommodations? That balancing of employer and employee interests seems to have worked reasonably well.

    (Of course, as incompletely raised on prawfs, first Chevron v. Echazabal [permitting ADA "direct threat" defense to apply to threats to employee's own health] would have to be overturned, i.e. by statute.)

  2. Bob Gellman says:

    IBM’s announcement is very nice. But it raises some interesting questions. First, what kind of other health information does IBM use to make employment decisions? And will the IBM chairman hire a 50 year old pilot for his corporate jet who has the Huntington’s gene but is asymptomatic at present?

    Second, what is genetic information? I looked for the IBM policy and didn’t find it. I didn’t look hard so it may be available. But the definition is very important and very difficult. Is your sex and race genetic information? Family history? Blood type? All kinds of routine medical tests reveal information that is “genetic” in origin. I have yet to see a truly good legislative definition for genetic information. However you define it, you will be over-inclusive or under-inclusive.

    Third, if we protect people with genetic disorders, will we end up discriminating against people with identical conditions that are not genetic? Consider the guy with genetically based heart disease vs. the guy who eats too many doughnuts.

    Fourth, we need to use genetic information to decide whether to conduct or pay for medical tests. A guy with a gene for colon cancer may need a colonoscopy at age 25, but the insurance company may not pay for it unless it knows that there is a good reason.

    It is really easy to argue that genetic information is different and needs special protection. You could have made the same argument about x-rays 100 years ago. But the distinction between genetic information and other health information is growing thinner every day. And all the fear mongering about misuse of genetic information may be scaring people away from using technology that may benefit them. The Curry case may be an example.

    I don’t want to suggest that the issues here are simple or one-sided, or that anyone is arguing in bad faith. What’s needed is a better sense of what is is we are trying to accomplish, clearer definitions, and a longer-range view of the problems.

    Disclosure: Ny wife is a geneticist.

  3. Paul Gowder says:

    Modest proposal: strike the phrase “substantially impairs a major life activity” from the ADA, expand coverage to all impairments or other cognizable health conditions. That would solve a bunch of problems including the genetic one.

  4. “Kim’s observations help explain Curry’s decision to risk his life and compromise his health care in order to be able to continue his job. Curry made this decision despite being offered a lucrative package by the Bulls even if his genetic tests came out against him.”

    A small factual question, but perhaps an important one: do we actually know that Curry compromised his health care at all?

    Curry refused to take the test and share the results with the Bulls. Curry was, of course, free to take the test on his own and keep the results private. We simply do not know, to my knowledge, whether Curry took the exam on his own, or whether failing to take the exam would compromise his health care (there appears to be some medical debate over this). We do know Curry had a competent medical staff advising him.

    The broader questions you raise with respect to genetic discrimination are obviously important ones, but I am not yet convinced that Curry’s story should be Exhibit 1 in favor of the proposition that tests should remain confidential for fear that employees will not get proper medical care.

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