IBM vs. NBA: Using Employee Genetic Information
posted by Daniel Solove
This week, IBM announced that it would not use genetic information in making any employment decision:
On October 10, IBM Chairman Sam Palmisano signed a revision of the company’s equal opportunity policy specifying that IBM would not “use genetic information in its employment decisions.” In doing so, Big Blue became the first major corporation to proactively take this position. “Business activities such as hiring, promotion and compensation of employees will be conducted without regard to a person’s genetics,” wrote Palmisano in a letter to employees announcing the change.
In contrast, consider the story of Eddie Curry, an NBA basketball player. Curry was with the Chicago Bulls, but he had two incidents of heart arrhythmia. General Manager John Paxson decided to bench Curry for the rest of the season. Paxson wanted Curry to undergo a genetic test to further diagnose his heart condition, but Curry refused. According to this CNN-Sports Illustrated article:
Medical experts told Paxson that Curry needed to undergo a DNA test to show whether or not he was predisposed to hypertrophic cardiomyopathy, the same heart disease that was linked to the tragic deaths of Reggie Lewis and Hank Gathers while they were playing basketball. . . .
Paxson could not bear the responsibility of permitting Curry to play so long as there was the slightest doubt that playing the game could end his life. Paxson says that he and Bulls owner Jerry Reinsdorf were in full agreement on this issue: A DNA test showing that Curry was predisposed to a fatal disease, in concert with the two episodes of last season, would have been enough to prohibit Curry from playing for the Bulls again. . . .
Paxson ultimately made two contract offers to Curry, a restricted free agent. But both offers were contingent on him taking the DNA exam. If he passed the test, he would receive $32 million over four years. If the test indicated that Curry was predisposed to a potentially fatal heart condition, the Bulls promised him an annuity that would pay Curry $400,000 annually for 50 years — a total of $20 million for someone who wouldn’t be playing.
Curry declined to take the test, fearing that a positive result could lead to him being unable to play anywhere in the NBA. He was eventually traded to the New York Knicks.
The Curry situation reveals one of the reasons why genetic testing should remain confidential — people might be deterred from getting the test if they know it can be used against them in employment decisions. And shouldn’t it be up to Curry himself to make the decision about whether to risk his health? It’s his life, after all.
On the other hand, Curry’s condition has effects on his employer and his team. If Curry were to drop dead on the basketball court, the Chicago Bulls’ management might come under great criticism. It would have an effect on the fans and on the entire team. It is certainly an incident that the Bulls’ managment would want to avoid.
Richard Epstein (law, Chicago) believes that allowing people to conceal the results of genetic testing from their employers is tantamount to allowing them to engage in fraud:
False statements about or deliberate concealment of genetic information is as much a fraud as false statements about or concealment of any other issue.
Epstein argues that employers bear a big burden when they hire a person with a genetic disorder. If that person knows about it, he or she is unfairly concealing material information from the employer. Richard A. Epstein, The Legal Regulation of Genetic Discrimination: Old Responses to New Technology, 74 B.U. L. Rev. 1 (1994).
Paul Schwartz (law, Brooklyn) makes the apt point that employers often discriminate against people based on misunderstandings about certain health conditions. And people might not seek out the appropriate health care because of the fear of the consequences. Paul M. Schwartz, Privacy and the Economics of Health Care Information, 76 Tex. L. Rev. 1 (1997).
The difficulty, in many situations, is that it is rational for employers to discriminate against people with genetic conditions. If Curry does indeed have a heart condition or is genetically predisposed to developing one, it might be rational for the Bulls’ management not to want to play him.
Pauline Kim (law, Washington U.) argues that there are good reasons why we should prevent employer use of genetic data even when employers are acting rationally in using it. Specifically, she contends, work is “more than merely an income stream; it is closely tied to identity, status and community.” Pauline T. Kim, Genetic Discrimination, Genetic Privacy: Rethinking Employee Protections for a Brave New Workplace, 96 Nw. U. L. Rev. 1497 (2002). The importance of work in people’s lives is a strong enough societal value that it should trump the extra benefits employers might get in using genetic information.
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.
These issues are powerfully illustrated by the movie Gattaca
UPDATE: There is an interesting discussion of the Eddie Curry incident from last week over at PrawfsBlawg in a post by Matt Bodie.
October 16, 2005 at 12:08 am
Posted in: Privacy, Privacy (Medical)
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Responses (6)
Paul Gowder - October 16, 2005 at 11:03 am
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.)
Bob Gellman - October 16, 2005 at 7:17 pm
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.
Paul Gowder - October 16, 2005 at 9:56 pm
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.
Joshua Wright - October 17, 2005 at 1:18 pm
“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.
The University of Chicago Law School Faculty Blog - October 18, 2005 at 1:03 pm
Two Cheers for Genetic Testing
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
Concurring Opinions - October 18, 2005 at 11:40 pm
A Reply to Richard Epstein on Genetic Testing
In his first post to the relatively new Chicago Law Faculty Blog (which has turned out to be a really interesting blog by the way), Professor Richard Epstein argues against my recent post about genetic testing in the workplace. Epstein…
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