Too Much Information: Predictions of Employee Disease and the Fringe Benefit System

Lance Liebman, Columbia Law School


Two themes of recent American labor policy are at odds with each other. One is the expansive concept of antidiscrimination, now in process of being applied to tell employers that certain predicted disadvantages of job applicants should be ignored when hiring decisions are made. The second is the equally expansive idea of social protection as an employer responsibility, now in process of assigning to employers a much larger responsibility for the economic needs of workers and their families. Testing – the effort by employers to discover information about applicants and employees – is at the intersection of these policies and at the center of the conflict. As advances in medical science and technology expand the universe of qualities and characteristics for which employees can be tested, this conflict becomes increasingly difficult to resolve. This paper considers one likely consequence of our rapid advances in medical science and technology: The increased ability to predict disease (and perhaps behavior itself) among job applicants. Does current antidiscrimination law bar employers from basing hiring decisions on predictions of future disease? Should it? On one hand, we as a society have a poorly articulated sense that consideration of such factors is inappropriate; on the other hand, state and federal legislation is heightening the economic relevance of those very factors.