Insurance information can lead to employment discrimination

by Wendy Yu | 5/10/00 5:00am

Not even a brilliant rsum, sparkling cover letter and flawless interview may be enough to land you the perfect job these days. If your medical records portray you as a health risk, potential employers might reject you despite your top credentials.

Concerns about the confidentiality of our medical information have increased in recent years as advances in medical and information technology have given potential employers a chilling look into medical conditions of our pasts -- and futures.

"Legislation is long overdue to address some of the problems of medical privacy," Jeremy Gruber, legal director of the National Workrights Institute, told The Dartmouth.

Gruber characterized current legal protection of medical information as "generally nonexistent."

When an employer extends a job offer to an applicant, the law permits the employer to access a wide range of information -- including medical records -- from sources such as medical information bureaus, previous employers and insurance claims.

Clark Dumont, vice president of corporate relations at Anthem Blue Cross and Blue Shield in Manchester, said there is no set of clear laws which govern the access of medical information from insurance companies.

Dumont's company has a policy of keeping specific records confidential, although Blue Cross does release reports which describe general trends of health status, such as figures about the preponderance of hypertension.

However, employees frequently volunteer medical data without understanding the discriminatory implications of that information, casually mentioning instances of cancer in their families, for example.

According to Gruber, an employer can use this data to assess the potential for an employee to become a "cost-liability," a person with a risk for sickness or disease who could possibly burden the company with medical bills.

A report by National Workrights included a 1998 American Management Association survey in which about half of all employees had to undergo pre-employment medical examinations and reveal information that could be used against them, even though they might have been able to perform their jobs perfectly.

The report also listed a 1993 Harris poll that found nine percent of survey participants believed their employers or family member's employers had disclosed personal medical information in an improper manner. It said one in 25, equivalent to more than five million workers, believed employers inappropriately shared their personal health information with others at work.

Currently, the Americans with Disabilities Act and the Occupational Safety and Health Act are the only federal laws that provide any amount of protection for employee medical information. However, neither of these prevent employers from accessing a wide variety of health information.

Susan Sutton, executive director of the American Civil Liberties Union in Maine, said privacy is "an issue all employees should be worried about. It's a very serious problem that needs to be addressed."

Advocates of stricter medical privacy laws make the claim that being genetically at risk for a disease or choosing a lifestyle that increases the chances of developing a disease should not affect employment decisions if the worker can perform his or her job.

Also, employers have no right to look through the records of employees and potential employees, possibly accessing such personal information as a history of sexually-related diseases, emotional problems and family medical problems. "It's hard for employees to know when they're being discriminated against," Gruber said.

Employers would not admit to making layoff decisions based on medical information, but could easily manufacture valid reasons, he said.

He added it is even more difficult for applicants to recognize discrimination since they do not know what kinds of information employers acquire.

The growth of genetic testing has also caused concerns in the past few years. According to biology professor Robert Gross misconceptions about the implications of genetic mutations could result in discrimination.

Gross called the current level of genetic understanding "interesting" because science can now identify approximately a few hundred genes, but not tens of thousands of others.

He predicted in 15 to 20 years, when perhaps all genes are mapped, popular understanding of the prevalence of genetic mutations will be understood, and discrimination will be reduced.

"We're all born with about five to 10 mutations. You have them, I have them, everybody at Dartmouth has them," he said, adding that pure chance dictates whether or not someone's particular mutations are tangible.

The 1999 Employee Health Information Privacy brief of the ACLU National Task Force expresses concern about the emergence of new genetic technologies and the resulting impact on employee protection. The report lists predisposition to Huntington's disease, alcoholism and many types of cancer as genetic traits that can now be discovered and included in employee medical records. This information can be used improperly by employers to discharge those at risk.

Gross described certain genetic disorders as being relevant to job descriptions, such as those involving physical requirements, but added that most disorders are hidden and should not be involved in employee decisions.