Whose right is it anyway?

Yahoo! News reports that the Senate is expected to pass a bill barring discrimination by insurers and employers on the basis of genetic testing results. In the name of anti-discrimination "rights," Congress will violate the real rights of individuals to make hiring, firing, and insurance decisions based on their own judgment.

Compare genetic-testing discrimination to racial discrimination: Unless one's job performance depends largely on one's appearance (such as acting or modeling), race is an irrelevant characteristic on which to base hiring decisions, and thus racial discrimination is irrational. Yet even though it is irrational, racial and other forms of discrimination ought to be legal. Why? Because no one suffers from discrimination on the basis of irrelevant characteristics except the person who exercises it -- the employer who only hires people of his own race so he can "feel comfortable" will lose out on being able to hire the most productive people available to him. What about those he discriminates against? No one has a right to a job, only the right to accept one if offered -- so the discriminated-against have lost nothing. The failure to gain a thing is not a loss; the discriminated-against are perfectly free to find more rational employers, and the discriminator must be left free to suffer the consequences of his own actions.

The results of genetic testing, unlike race, are not irrelevant to employers in the current legal environment. Employers are required or strongly incentivized by the government to provide health insurance. Since the employer is forced to insure his employees as a group, neither raising the cost for employees at high risk of health problems nor lowering it for those at low risk, it is in the employer's best interest to hire healthy employees who are likely to stay that way. So it is that a job candidate with a positive test for a gene that causes, say, Parkinson's disease, is less desirable than another candidate with no such test results, all other things being equal. (And, obviously, the results of genetic testing are of interest to insurers in setting rates, whether or not employers are required to provide insurance.)

Employers are already constrained from acting on their judgment by not being able to decide for themselves whether they would like to provide insurance to their employees (nor to which employees they'd like to offer it). The new law will constrain their judgment even more, by saying that employers cannot even use knowledge of an employee or potential employee's health risks to control costs.

What this will mean is higher costs for everyone: more money paid by employers to insure a higher-risk pool, and lower salaries as employers need to find a way to save the money spent on insurance. What we really need is a fully free market in healthcare -- but in the meantime, the use of genetic testing results in employment and insurance decisions should be left out of the purview of the government. If an employer wants to know the results of genetic tests, he should be able to ask his employees to show them (the employee can always refuse, but he is not free to demand that his boss continue to employ him if he does). It's unfortunate that the results of such tests are in fact relevant considerations for employers, but even if they were not (ie, if a free market existed in healthcare), it would be a violation of individual rights not to allow them to be considered.

The way to keep people from being discriminated against based on their health risks -- not always a relevant consideration for job performance -- is not to ban discrimination. It's to ban the government regulations that made such factors "relevant" to hiring decisions in the first place.