An Equality Paradigm for Preventing Genetic Discrimination

Abstract

In this article we argue for the creation of an equality-based protection similar to that of race and sex discrimination. In doing so, we demonstrate the confluence of genetic discrimination with that of disability discrimination, and discuss some problems inherent with current approaches to statutory protection in both these areas. We show that the ADA, as well as current and proposed genetic discrimination laws, bifurcates the population into protected and unprotected groups. The ADA and specialized genetic discrimination law protect different groups that are, essentially, mirror images of each other while leaving an important part of the population unprotected. In practice the ADA applies only to those individuals who are seriously symptomatic, while genetic discrimination law extends only to those who are either nonsymptomatic or asymptomatic. Falling between these two poles and thus lacking protection is a large group of presymptomatic individuals with genetic anomalies which may never be expressed or, if expressed, may not manifest as unmitigatable functional impairments. Because excluding this latter category of individuals from labor market participation (and attendant social opportunities) is probabilistically unjustifiable as well as enormously costly to society, we advocate their inclusion in the classification of the group targeted for genetic discrimination protection. We also set to rest fears that so broadly extending protection will increase transactional costs for everyone. In making these assertions, this article diverges widely from existing legal scholarship. To date, commentators advocate either for greater application of the ADA or the enactment of specific legislation to the realm of genetic discrimination without either noting or addressing the exclusion from coverage of presymptomatic individuals.