By Kaitlyn Dowling, based on research by the Cyberlaw Clinic at the Berkman Klein Center for Internet & Society
In a year-long series on Bill of Health, we’ll be exploring the legal scholarship on genetic non-discrimination. We’ll talk more about GINA and state laws protecting citizens from genetic discrimination. We hope these posts help shed light on this complex and ever-more-relevant area for legal scholars, policymakers, and the public at large. Read the previous posts in the series.
Nondiscrimination in Housing and Lending
Most states regulate the use of genetic information in some way, but protections are typically limited to employment and insurance. To most people, those two areas of protection seem obvious: it’s easy to see why your health insurer would want to know if you’re likely to become expensive to cover. Likewise, you can also understand why potential employers would want to know if they’re about to hire a worker who’s likely to need significant time off to attend to health issues. Only a select number of states ban genetic information discrimination in other contexts, like education, disability insurance, and life insurance.
Today, we’ll take a look at protections in housing and lending in the states of California, Illinois, Massachusetts, Michigan, Virginia, and Washington.
What are the risks of being discriminated against?
Despite relatively scant historical evidence, the risk of genetic discrimination in housing and lending is significant because financial institutions, landlords, and property developers are fundamentally motivated to use genetic information in potentially discriminatory ways. For example, high medical expenses associated with certain health conditions can create greater risk that an individual may not be able to pay back their mortgage; cancer patients in the United States are two times as likely to file for bankruptcy as people without a history of cancer, and working-age cancer patients may be unable to continue working as a result of their cancer treatment. Similarly, late-onset diseases that are associated with genetic risk factors, such as Alzheimer’s disease, can result in six-figure medical expenses.
If mortgage lenders could identify which borrowers are genetically inclined to contract illnesses associated with particularly high costs of care or early mortality, it stands to reason that they would use that information to make lending decisions. In the past, mortgage lenders have used health information to assess a borrower’s financial stability, which is illegal. In 2015 the Department of Housing and Urban Development pursued legal action against Mortgage One, a mortgage lender that allegedly requested verification from a borrower’s doctor regarding the borrower’s disability status. Specifically, Mortgage One wanted to know that the borrower would continue to receive Social Security benefits for his disability for the foreseeable future.
But while it is illegal for lenders, sellers, and landlords to discriminate against individuals due to an existing illness or disability, it is not immediately clear whether discrimination on the basis of genetic information is also illegal. To determine whether someone qualifies as “disabled,” and is thus entitled to the FHA’s protections from discrimination, the FHA follows the ADA’s standard, which requires an individual to show that they have a “physical or mental impairment that substantially limits one or more major life activities, a record of having such an impairment, or being regarded as having such an impairment.” The scope of the ADA’s protections was expanded in 2008, so asymptomatic individuals are at least arguably protected against genetic discrimination under the ADA. However, the FHA and ADA have remained silent on this particular issue.
Genetic information, therefore, could be used to discriminate against someone who does not have a manifest disability but could potentially have such a disability in the future. If the FHA isn’t read broadly enough to include genetic discrimination, it seems as though asymptomatic individuals who nonetheless are genetically predisposed to certain illnesses or disabilities could face legal discrimination on the basis of their genetic information.
What have the states decided?
Out of the states surveyed, only California and Massachusetts explicitly prohibit genetic discrimination with respect to housing and lending. In 2000, Massachusetts enacted one of the broadest genetic anti-discrimination laws in the country when they amended a number of civil rights protections to include “genetic information” as a prohibited basis for discrimination. Over a decade later, California passed the California Genetic Information Nondiscrimination Act (CalGINA), which provides for expansive protections against genetic discrimination.
It’s surprising that any states prohibited the use of genetic information in housing and lending, as it wasn’t contemplated when the federal GINA law was drafted, and very little had been written about genetic discrimination in housing and lending. However, in both Massachusetts and California, employment and housing protections are contained within a single statute. For instance, California’s Fair Employment and Housing Act (FEHA) prohibits discrimination in employment, housing, and mortgage lending. Additionally, the Unruh Civil Rights Act broadly prohibits businesses from discriminating against protected classes. Consequently, CalGINA simply amended FEHA and the Unruh Civil Rights Act by inserting “genetic information” into the list of protected classes that protect against discrimination by employers, property owners, mortgage lenders, schools, and other businesses. Massachusetts’ experience was similar: sweeping protections against genetic discrimination were passed by an amendment that inserted “genetic information” into its list of protected classes, which prohibits discrimination in employment, housing, lending, and other contexts. The legislative history in Massachusetts and California suggests that the best path to broad protections against genetic discrimination may be to amend existing anti-discrimination laws, rather than adding specific genetic anti-discrimination provisions piecemeal.
The risk of discrimination based on genetic information exists not only in health insurance and employment, but in other contexts as well. It is logical that those deciding who will be granted a mortgage or other line of credit would benefit from access to their clientele’s genetic information. Knowing even the potential for a future disability or diagnosis could encourage these institutions to discriminate against those they believe could pose liabilities. GINA, a federal law, does not extend protections to the areas of housing and lending, though some states do. Legislators hopeful to enact housing and lending protections may look to California and Massachusetts as examples of two states that have successfully implemented such protections by extending the scope of their existing anti-discrimination laws to cover genetic information as well.