Lecture 19- Genetic discrimination: insurance and employment

Question 1

What are the issues surrounding genetic discrimination with insurance and employment?

Answer 1

• relevance of genetic test results for insurance
• different types of insurance for health and life cover
• when insurance companies can lawfully use genetic test results in issuing policies and setting premiums
• how insurers’ decisions can be challenged under anti-discrimination legislation.

Question 2

What are the types of insurance contracts?

Answer 2

• health insurance, life insurance and income protection insurance – disability/trauma insurance, superannuation insurance., everyone has this, cannot say no (the insurer)
-they cannot turn you away, either public and private (pay same), little difference in age
-other types of insurance, income protection insurance, life insurance etc. (life insurance also covers money paid when you cannot work)
-with these you must tell the insurance company about the health risks you have, the utmost faith
• all ‘utmost good faith’ – applicant must disclose all relevant details to insurer Insurance Contracts Act 1984 (Cth): s 21: see next slide.
• insurer can avoid contract or pay less if non-disclosure

Question 3

What is the relevance of genetic test for insurance? (life insurance)

Answer 3

• genetic test results help predict health and lifespan
• same with blood tests, cholesterol tests and blood pressure tests
• other factors relevant – family history; lifestyle – smoking, exercise
-Why single out genetic tests for special rules?

Question 4

What is the insurance contracts act like?

Answer 4

INSURANCE CONTRACTS ACT 1984 - s 21 (1) Subject to this Act, an insured has a duty to disclose to the insurer, before the relevant contract of insurance is entered into, every matter that is known to the insured, being a matter that:

(a) the insured knows to be a matter relevant to the decision of the insurer whether to accept the risk and, if so, on what terms; or
(b) a reasonable person in the circumstances could be expected to know to be a matter so relevant.

Question 5

When can insurers lawfully use genetic test results?

Answer 5

• Health insurance (public and private): premiums set at same rate regardless of risk, though an allowance for age - ‘community rating’ and private insurance companies can impose conditions (eg can’t claim for x months for certain conditions after policy issued)
-with health insurance is not based on individual risk
• Life/ most super/ disability insurance: premiums based on risk – insurance company may refuse cover or increase premium.
-issues as sometimes have to have the life insurance (for morgages etc.)

Question 6

What is the IFSA policy (Investment and financial services association)?

Answer 6

• insurance companies will not require applicants to undertake genetic test
• but if applicant has had a test, they may require the person to disclose the test result.
- May lead to higher premium, reduced coverage, exclusions of some conditions, refusal of policy.
-this is an association of insurers
-insurance is based on sharing risk
-in the UK, there is an option where you can take a modest insurance and then don’t have to show them

Question 7

What happens with when you are told that they won’t insure you?

Answer 7

-with health usually win but with disability etc it is fdifficult

Question 8

What is the anti-discrimination legislation like and how does it protect you?

Answer 8

• unlawful for person providing goods and
services to discriminate b/c disability. Disability Discrimination Act 1992 (Cth) s 24 - see next two slides
• but insurance company offering life or annuity insurance can lawfully discriminate if
– discrimination based on actuarial or statistical data and
– discrimination reasonable Disability Discrimination Act s 46 – see later slide
• insurance companies must give reasons
• applicant can complain to Australian Human Rights Commission (AHRC).
-the issues with these is that there have been very few

Question 9

What is the definition of disability and impairment?

Answer 9

• includes having a genetic condition,
or a predisposition, or carrier status: –Disability Discrimination Act 1992
(Cth)
–Equal Opportunity Act 1995 (Vic)
-Eg Disability Discrimination Act 1992 (Vic) s 4(1)
“disability”, in relation to a person, includes a disability that may exist in the future (including because of a genetic predisposition to that disability); or is imputed to a person…

Question 10

What does the disability discrimination Act 1992 say?

Answer 10

s 24 Goods, services and facilities
It is unlawful for a person who provides goods and services to discriminate against another person on the ground of the person’s disability
–by refusing to provide goods or services
–in the terms/conditions/manner of providing them

Question 11

What is the legislation regarding life insurance discrimination?

Answer 11

s 46 (1) This Part does not render it unlawful for a person to discriminate against another person, on the ground of the other person’s disability, by refusing to
offer the other person… annuity, life insurance*, if: (f) the discrimination:
(i) is based upon actuarial or statistical data on which it is reasonable for the first-mentioned person to rely; and
(ii) is reasonable having regard to the matter of the data and other relevant factors; or
(g) where no such actuarial or statistical data is available and cannot reasonably be obtained—the discrimination is reasonable having regard to any other
relevant factors.

Question 12

Where can you complain about this?

Answer 12

the data and other relevant factors; or
(g) where no such actuarial or statistical data is available and cannot reasonably be obtained—the discrimination is reasonable having regard to any other
relevant factors. *income protection

Complaints
• Australian Human Rights Commission underDisability Discrimination Act 1992(Cth); Australian Human Rights Commission Act 1986 (Cth)
• Victorian Human Rights and Equal Opportunity
Commission under the Equal Opportunity Act 1995 (Vic)

Question 13

What are the issues with having to disclose the test results to insurers?

Answer 13

• if have to disclose, may discourage you from having the test
• but can get the insurance and then have the test and then you don’t have to tell them

Question 14

What was the BRCA case?

Answer 14

-USA, 28 April 2010: Pamela Fink claims

bosses dismissed her after they became aware she carried BRCA2 breast cancer gene

Question 15

What are the case studies for employment discrimination?

Answer 15

1. Vic 2001: proposed that professional boxers be tested for gene mutation making fighters ‘punch–drunk’
2. Dept of Defence: test all applicants for fitness to serve – deployable in harsh conditions – limited medical facilities
3. Tasmanian Police Service: collect genetic samples from recruits for use in eliminating their genetic material as possible contaminants at crime scene

Question 16

What are the reasons for employment tests?

Answer 16

• employer’s benefit – to reduce costs of
sick employees & families (health insurance/workers comp contributions)
• protect employees, co-workers
• employer’s duty to provide safe work place (occupational health & safety laws)
• protect community - equipment handled safely; product safety.

Question 17

What are the types of tests employers can do?

Answer 17

• screening: exclude high risk people
• diagnostic: diagnose illness or injury
• monitoring: exposure to hazards
• mandatory/voluntary

Question 18

What are the concerns about genetic tests for employment?

Answer 18

• requiring tests is paternalistic
• test not ‘voluntary’ if required for job
• people lose right not to know their risk
• invasion of privacy
• occupational risks to third parties rare
• employers might misuse information or make ill informed decisions (eg based on pre-disposition or carrier status).

Question 19

What is the current law on genetic tests for employment?

Answer 19

• no specific legislation
• common law principle: informed consent; confidentiality
• anti-discrimination legislation – see next slide
Disability Discrimination Act 1992 (Cth) Equal Opportunity Act 1995 (Vic)

Question 20

What is the anti-discrimination legislation regarding employment?

Answer 20

• employers must not discriminate b/c of disability in offering jobs, conditions of appointment, promotion, transfers, or dismissal (‘disability’ next slide)
• must not request information on which unlawful discrimination may be based
• may discriminate if person can’t do the job; would require special services imposing unjustifiable hardship on employer; or a risk to other workers

Question 21

What are the complaints that have been made under federal and state legislation?

Answer 21

• Qs asked at interview not related to job
• Not employed/promoted b/c of genetic history/results
• Dismissed b/c of +ve test result
• Sacked b/c time off to care for sick partner, child, partner etc …

Question 22

What questions can employers ask?

Answer 22

• Must not request information on which unlawful discrimination may be based.
• Can ask Qs about whether the person can do the job; would present a safety risk to other employees or wider community; or would require special services imposing unjustifiable hardship on employer
• Can’t ask Qs unrelated to job; about genetic history/results, +ve genetic test results; need for time off to care for sick partner, child, partner etc.

Question 23

Q. Policies for life insurance and health insurance are similar in that:
A. The premiums for both are based on age and risk.
B. The insurance company can refuse to grant a policy.
C Premiums can be different according to age.
D. Decisions about premiums can be challenged under anti- discrimination legislation.

Answer 23

• A: no
• B: no, life insurance have to give it to you
• C: yes (most true and this is it!)
• D: yes (with health insurance)

Question 24

Q. Insurance companies cannot take account of genetic test results unless: A. The person seeking insurance carries the relevant mutation.
B. The contract is for health insurance. C. The contract is for life insurance.
D. The contract is for a type of insurance that protects against future loss of income.

Answer 24

• A: no
• B: no
• C: yes
• D: yes (this one is the most one!)

Question 25

Q. Assume professional boxers are employees of a company organising a fight in Victoria and that the company requires them to be tested before they are allowed to fight for a gene mutation making fighters ‘punch–drunk’. One boxer, who objects to this test, complains to the Australian Human Rights Commission. The complaint is unlikely to be upheld because:
A. People who want to be boxers are entitled to make their own decisions about the risk that they are prepared to take.
B. A person who becomes ‘punch–drunk’ would not put up a good fight.
C. It would reflect badly on the company’s reputation if it employed people with a genetic condition like this.
D. The purpose of the test is to protect employees and not for the benefit of the employer.

Answer 25

-D: yes

Question 26

Q. Qantas is interviewing applicants for employment as a pilot. There is a genetic condition that predisposes
people to health risks at high altitudes (sickle cell anemia). It is lawful for the interviewer:
A. To ask applicants direct questions about their medical history to investigate whether they are at risk of this condition.
B. To require all applicants to have a genetic test for the condition if they want to be considered for the job. C. To require applicants to have the genetic test if there is reason to believe that the person may have the genetic predisposition.
D. To only ask questions about experience related to duties in flying.

Answer 26

• A: yes, to protect others
• B: no
• C: no
• D: yes as risk to other people