The Genetic Information Nondiscrimination Act of 2008 prohibits most forms of discrimination on the basis of genetic information in health insurance and employment. The findings cited as justification for the act, the almost universal political support for it, and much of the scholarly literature about genetic discrimination, all betray a confusion about what is really at issue. They imply that genetic discrimination is wrong mainly because of genetic exceptionalism: because some special feature of genetic information makes discrimination on the (...) basis thereof wrong. I suggest, to the contrary, that the best arguments against genetic discrimination assume that health care is an entitlement . I do this by examining two different exceptionalist arguments for genetic nondiscrimination, showing that they do not furnish good reasons for prohibiting genetic discrimination unless one supposes that health care is an entitlement. (shrink)

In his recent book, The Idea of Human Rights, Charles Beitz claims that we should reject the human right to democracy in favour of the less demanding right to collective self-determination. On this account, citizens are entitled to basic civil and political rights, and their interests are represented by a hierarchical regime that defers to a conception of the common good in decision-making processes. However, this claim undermines his subsequent defense of the human right to nondiscrimination, because systematically enforced (...) political inequalities are fundamentally discriminatory. In this paper, I explore and defend two claims: first, Beitz's rejection of the right to equal political participation is inconsistent with his defense of the human right to nondiscrimination; second, we should reconcile this inconsistency by maintaining that there ought to be a right to both nondiscrimination and political equality. In defending the second claim, I argue that equal political rights may protect a fundamental human interest and thus merit the status of a human right. I then argue that democratic institutions can be instrumentally linked to the effective protection of human rights. Further, without a constitution and political accountability mechanisms, disenfranchised citizens are dependent on the contingent benevolence of the ruling elite for the assurance that their basic liberties will be protected over time. Ultimately, even if hierarchical regimes protect basic liberties in practice, nondemocratic regimes violate the human right to nondiscrimination by systematically denying certain groups equal political rights. (shrink)

Numerous state laws and the federal Genetic Information Nondiscrimination Act (GINA) have been enacted to prevent or redress genetic discrimination in employment and health insurance, but laws protecting against genetic discrimination in life insurance have been less common and weak. Consequently, some individuals with a genetic risk of a serious illness have declined presymptomatic genetic testing, thereby decreasing their prevention and treatment options and increasing their mortality risk. In 2020, Florida became the first state to prohibit life insurance companies (...) from using the results of presymptomatic genetic tests in underwriting. Although the law was “only” intended to prevent genetic discrimination, a possible or even likely consequence of the law will be to encourage timely genetic testing by at‐rick individuals and thereby save lives. (shrink)

In the struggle over the durability of the Affordable Care Act, defenders of the ACA stand guard at many fronts. A major contribution of the ACA to nondiscrimination law, however, appears increasingly vulnerable. The ACA established significant new nondiscrimination protections for patients under section 1557 and its implementing regulations. Several of these regulations—including protections on the basis of gender identity and pregnancy termination—are now under reconsideration at the Department of Health and Human Services, after a nationwide injunction lasting (...) almost a year. Nondiscrimination laws matter, of course, because they promote equal access to health care. But focusing on discriminatory behavior alone is a narrow view of the purpose and potential of nondiscrimination rules—and underestimates the stakes of softening section 1557. To evaluate these protections, we must consider not only their impacts on discriminatory behavior but also their behavioral and attitudinal impacts on patients and communities. This is because supportive or stigmatizing rules can exert an expressive effect: laws communicate information about prevailing social norms, they give some norms greater authority by virtue of the state's support, and they can shape community values. Through these expressive impacts, nondiscrimination laws may affect not only discriminatory behavior in health activities but also the attitudes, beliefs, and decisions of people who are legally protected. (shrink)

Recent disputes over whether older people should pay more for health insurance, or receive lower priority for transplantable organs, highlight broader disagreements regarding the legality of using age-based criteria in health care. These debates will likely intensify given the changing age structure of the American population and the turmoil surrounding the financing of American health care. This Article provides a comprehensive examination of the legality and normative desirability of age-based criteria. I defend a distributive justice approach to age-based criteria and (...) contrast it with two prevailing theoretical approaches to age-based criteria, nondiscrimination and discretion. I propose a detailed normative framework for the use of age-based criteria in health care, the lifetime justice approach, that considers the future life patients can gain from treatment and the past years of life they already have experienced. -/- This paper is available by open access from the Boston College Law School Digital Commons. (shrink)

Should people who perform equal work receive equal pay? Most would say ‘yes’, at least insofar as this question is understood to be asking whether employers should be permitted to discriminate against employees on the basis of race or sex. But suppose the employees belong to all of the same traditionally protected groups. Is (what I call) nondiscriminatory unequal pay for equal work wrong? Drawing an analogy with price discrimination, I argue that it is not intrinsically wrong, but it can (...) be deceptive, in which case it is wrong. (shrink)

The Department of Health and Human Services has issued far-reaching regulations to implement the nondiscrimination requirement of the Affordable Care Act. Now commonly called “Section 1557,” this ACA provision prohibits discrimination by “any health program or activity, any part of which is receiving Federal financial assistance,” on grounds prohibited under previously enacted federal antidiscrimination statutes. The DHHS Office of Civil Rights enforces Section 1557. These new regulations and accompanying commentary give warning of the standards the agency will use in (...) its enforcement efforts. Courts will also give some deference to the DHHS regulations in interpreting the statute in lawsuits by individuals claiming damages against covered health care providers for illegal discrimination under Section 1557. Three central issues are the nature of the rights created in Section 1557 and their relation to the listed federal antidiscrimination statutes, the sorts of health care programs and activities that are covered by Section 1557, and the definition of the personal characteristics, including sexual orientation and gender identity, against which discrimination is prohibited. (shrink)

May 21, 2018, marks the tenth anniversary of the signing into law of the Genetic Information Nondiscrimination Act. The Congressional deliberations for GINA were long and difficult. The original bill was introduced in 1995, and for many years, it did not look as if the bill would ever emerge from committee. Several of its provisions raised concerns for insurers, employers, and other stakeholders. After thirteen years, the controversial provisions were either deleted, revised, or clarified. At this ten‐year mark, it (...) is appropriate to take stock of GINA. In light of GINA's glacial legislative history, it is reasonable to start thinking about the necessity, wisdom, and feasibility of amending GINA or enacting new legislation to address unresolved or emerging issues of genetic discrimination and trends in genetics, genomics, precision medicine, and related technologies. (shrink)

Down syndrome (Trisomy 21) is a mild to moderate intellectual disability. Historically, this condition has been a primary target for prenatal testing. However, Down syndrome has not been targeted for prenatal testing because it is an especially severe illness. The condition was just one that could be easily identified prenatally using the techniques first available decades ago. We are moving into an era in which we can prenatally test for a vast range of human traits. I argue that when we (...) can test for anything, there is no longer any reason to continue targeting Down syndrome. I present an argument based on the value of nondiscrimination. It is justified to set limits on access to prenatal information if the information is going to be used for discriminatory purposes. I use the examples of (1) prenatal testing for misogynistic fetal sex selection, and (2) homophobia-motivated prenatal testing for potential homosexuality, as compelling analogies. (shrink)

The Genetic Information Nondiscrimination Act of 2008 was passed to encourage patients to seek genetic testing that could improve health outcomes and provide opportunities for preventive measures. GINA protects individuals from discrimination based upon genetic information, but not upon manifested diseases and conditions. Because the manifestation of a disease establishes a threshold of protection for individuals under GINA, the definition of manifestation is crucial to understanding the scope of the bill. This paper examines the range of possible legal definitions (...) of disease manifestation and explores the historical struggle that courts have faced when trying to apply these different definitions. Specifically, the paper examines three frameworks that courts have used in the past to interpret the manifestation of a disease; “manifestation as apparent symptoms,”“manifestation as patient action,” and “manifestation as physician action.” We argue that the “manifestation as physician action” is the best framework to utilize in this law generally, but that the definition of manifestation should be read in the light most favorable to a plaintiff in order to achieve the underlying goals of GINA. (shrink)

Genetic-specific nondiscrimination laws have been enacted in most states, but the laws are ineffective and increase the stigma of genetic conditions. Whether these laws are better than no new legislation depends on their consequences and a recognition of their limitations.

Over the years, companies have adopted hiring algorithms because they promise wider job candidate pools, lower recruitment costs and less human bias. Despite these promises, they also bring perils. Using them can inflict unintentional harms on individual human rights. These include the five human rights to work, equality and nondiscrimination, privacy, free expression and free association. Despite the human rights harms of hiring algorithms, the AI ethics literature has predominantly focused on abstract ethical principles. This is problematic for two (...) reasons. First, AI principles have been criticized for being vague and not actionable. Second, the use of vague ethical principles to discuss algorithmic risks does not provide any accountability. This lack of accountability creates an algorithmic accountability gap. Closing this gap is crucial because, without accountability, the use of hiring algorithms can lead to discrimination and unequal access to employment opportunities. This paper makes two contributions to the AI ethics literature. First, it frames the ethical risks of hiring algorithms using international human rights law as a universal standard for determining algorithmic accountability. Second, it evaluates four types of algorithmic impact assessments in terms of how effectively they address the five human rights of job applicants implicated in hiring algorithms. It determines which of the assessments can help companies audit their hiring algorithms and close the algorithmic accountability gap. (shrink)

The combination of decreased genotyping costs and prolific social media use is fueling a personal genetic testing industry in which consumers purchase and interact with genetic risk information online. Consumers and their genetic risk profiles are protected in some respects by the 2008 federal Genetic Information Nondiscrimination Act (GINA), which forbids the discriminatory use of genetic information by employers and health insurers; however, practical and technical limitations undermine its enforceability, given the everyday practices of online social networking and its (...) impact on the workplace. In the Web 2.0 era, employers in most states can legally search about job candidates and employees online, probing social networking sites for personal information that might bear on hiring and employment decisions. We examine GINA's protections for online sharing of genetic information as well as its limitations, and propose policy recommendations to address current gaps that leave employees? genetic information vulnerable in a Web-based world. (shrink)

This paper considers challenges resulting from the use of advanced artificial judicial intelligence (AAJI). We argue that these challenges should be considered through the lens of value alignment. Instead of discussing why specific goals and values, such as fairness and nondiscrimination, ought to be implemented, we consider the question of how AAJI can be aligned with goals and values more generally, in order to be reliably integrated into legal and judicial systems. This value alignment framing draws on AI safety (...) and alignment literature to introduce two otherwise neglected considerations for AAJI safety: specification and assurance. We outline diverse research directions and suggest the adoption of assurance and specification mechanisms as the use of AI in the judiciary progresses. While we focus on specification and assurance to illustrate the value of the AI safety and alignment literature, we encourage researchers in law and philosophy to consider what other lessons may be drawn. (shrink)

How should liberal societies select prospective members? A conventional reading of immigration history posits that whereas ascriptive characteristics drove immigration policy in the past, contemporary policy is based on the principle of nondiscrimination. Yet a closer look at the characteristics of those admitted reveals systematic group biases that run counter to liberalism’s core moral commitments. This article first discusses liberal states’ basic moral obligation to treat their citizens with equal respect. It then identifies ways in which the group biases (...) produced by immigration policy violate that principle, when states either deprive their citizens of fundamental rights or stigmatize them through hierarchical constructions of citizenship. Three mechanisms are presented—structural bias, profiling, and positive selection—by which seemingly liberal admissions policies produce illiberal outcomes. The empirical analysis explores the resulting discriminatory group biases in the context of language and income conditionalities on family migration, excessive demand restrictions against economic migrants, and visa waivers for international travelers. We conclude that immigration reforms that mitigate, if not erase, these morally problematic patterns are within the reach of liberal states. (shrink)

The question of whether a liberal state ought to recognize same-sex marriage must be situated within a broader inquiry into the proper relationship between political liberalism and marriage simpliciter. This general inquiry invites a diverse set of responses to the narrower question.A first widely held view—call it thick marital egalitarianism—sees a straightforward link from central liberal values, such as neutrality, equality, and nondiscrimination, to the full and equal inclusion of all willing partnerships into the thickly constituted, state-defined institution of (...) marriage. A second very different account—call it thin marital egalitarianism—sees the liberal commitment to neutrality as requiring a minimal legal framework of support for caring relationships sans additional antecedent restrictions, such as those thickly defining their nature or their purpose . Finally, a third important view—call it liberal marital contractualism—holds that this kind of "minimal marriage" is not minimal enough; a liberal state ought to treat marriage as a primarily "private affair worked out between or among partners, with [its] involvement limited to the enforcement of general laws and particular contracts that are individually designed within a defensible system of contract law". (shrink)

Neurocognitive enhancement, or cosmetic neurology, offers the prospect of improving the learning, memory and attention skills of healthy individuals well beyond the normal human range. Much has been written about the ethics of such enhancement, but policy-makers in the USA, the UK and Europe have been reluctant to legislate in this rapidly developing field. However, the possibility of discrimination by employers and insurers against individuals who choose not to engage in such enhancement is a serious threat worthy of legislative intervention. (...) While lawmakers should not prevent individuals from freely pursuing neurocognitive enhancement, they should act to ensure that such enhancement is not coerced. This paper offers one model for such legislation, based upon a proposed US law, the Genetic Information Nondiscrimination Act of 2008, to address precisely this particular pitfall of the impending neuroscience revolution. (shrink)

In 2009, with the enactment of the Lisbon Treaty, the Charter of Fundamental Rights of the European Union entered into force. Under Article 8 of the Charter, for the first time, a stand-alone fundamental right to data protection was declared. The creation of this right, standing as a distinct right to the right to privacy, is undoubtedly significant, and it is unique to the European legal order, being absent from other international human rights instruments. This commentary examines the parameters of (...) this new right to data protection, asking what are the principles underpinning the right. It argues that the right reflects some key values inherent in the European legal order, namely: privacy, transparency, autonomy and nondiscrimination. It also analyses some of the challenges in implementing this right in an era of ubiquitous veillance practices and Big Data. (shrink)

This chapter considers possible moral grounds for recognizing and realizing economic and social rights (ESRs) as human rights. It begins by suggesting that ESRs fall into three families: (1) welfareoriented ESRs, which protect adequate income, education, health, and safe and healthful working conditions; (2) freedom-oriented ESRs, which prohibit slavery, ensure free choice of employment, and protect workers’ freedoms to organize and strike: and (3) fairness-oriented ESRs, which require nondiscrimination and equal opportunity in the workplace along with fair remuneration for (...) one’s work. To accommodate the normative diversity found in these three families, the chapter suggests a pluralistic justicatory framework that appeals to three kinds of moral reasons: human welfare, freedom, and fairness. A final section considers the possibility of subsuming all three of these approaches to justication under the idea of human dignity or the associated idea of equal respect for persons. (shrink)

The data science era is characterized by data-driven automated decision systems (ADS) enabling, through data analytics and machine learning, automated decisions in many contexts, deeply impacting our lives. As such, their downsides and potential risks are becoming more and more evident: technical solutions, alone, are not sufficient and an interdisciplinary approach is needed. Consequently, ADS should evolve into data-informed ADS, which take humans in the loop in all the data processing steps. Data-informed ADS should deal with data responsibly, guaranteeing (...) class='Hi'>nondiscrimination with respect to protected groups of individuals. Nondiscrimination can be characterized in terms of different types of properties, like fairness and diversity. While fairness, i.e., absence of bias against minorities, has been widely investigated in machine learning, only more recently this issue has been tackled by considering all the steps of data processing pipelines at the basis of ADS, from data acquisition to analysis. Additionally, fairness is just one point of view of nondiscrimination to be considered for guaranteeing equity: other issues, like diversity, are raising interest from the scientific community due to their relevance in society. This paper aims at critically surveying how nondiscrimination has been investigated in the context of complex data science pipelines at the basis of data-informed ADS, by focusing on the specific data processing tasks for which nondiscrimination solutions have been proposed. (shrink)

The article discusses the rights of minorities in the system of the International Covenant on Civil and Political Rights. It establishes a conceptual distinction between universal rights, specific rights of minorities in general and specific rights of particular minorities. Universal rights correspond to all individuals (e,g,, “no one shall be subjected to torture”) or all groups of a certain class (e.g., “all families are entitled to protection”). Minority groups and their members are entitled to these rights in the same way (...) as any other individual or group. Specific rights of minorities in general are granted to minority groups (e.g., “minority groups have the right to speak their own language”) or their members (e.g., “persons belonging to a minority group have the right to speak the language of the group”). Finally, specific rights of particular minorities are granted to specific groups identified by their characteristics (e.g., “the linguistic minority X has the right to speak the X language”) or their members (e.g., “any member of the linguistic minority X has the right to speak the X language”). Treaties and international declarations often refer to universal rights and specific rights of minorities in general. However, these rights are usually recognised in broad terms, and their implementation may lead to the recognition of specific rights in favour of particular minorities or their members. Protection of minorities (in the broad sense of the expression) is based on two pillars: on the one hand, the protection against discrimination; on the other hand, the protection of minorities in the strict sense. The first pillar is an aspect of the general principle of nondiscrimination and requires respect for both formal and substantive equalities. The protection of minorities in the strict sense involves the preservation of their particular identity. The purpose of the equality in a formal sense is achieved through universal rights, to the extent that these are granted to minority groups and their members. On the contrary, to achieve equality in a substantive sense, it could be necessary to implement positive measures. The implementation of these measures will usually lead to the recognition of specific rights of minority groups or their members. Finally, the protection of the distinctive characteristics of the minorities will also be done through specific rights. Thus, on the one hand, there are rights, which are intended to protect the minority forms of life (i.e. to protect differences), and, on the other hand, those that are intended to allow minorities equal access to different uniform social goods (i.e. to protect equality). Whereas the former ones seek to protect and promote the particularities of the minority culture (e.g., the right to receive education in their own language), the latter ones are recognised to overcome the disadvantages that minority groups and their members face and are not intended to promote peculiarities, but rather to permit equal access to resources and social opportunities. Article 27 of the International Covenant on Civil and Political Rights enshrines specific rights of minorities intended to protect and promote their own forms of life. Although economic rights are not mentioned (the article refers to the rights “to enjoy their own culture, to profess and practise their own religion, [and] to use their own language”), they may stem from the explicitly recognised rights. The rights recognised by the Covenant are not collective, but individual rights (“in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right [...]”). The rights recognised in the Declaration of the United Nations General Assembly on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities are of the same nature. The principle of equality and non-discrimination is contained in Articles 2.1 and 26 of the Covenant. This principle forbids direct and indirect discrimination, be it de iure or de facto. As this is a universal right, minorities can also benefit from it. According to the Human Rights Committee, Article 27 imposes on States the adoption of positive measures that exceed an attitude of mere abstention. In the same way, positive measures may be necessary to make the principle of equality and non-discrimination effective. Although neither Article 27 nor Articles 2.1 and 26 refer to individuals belonging to a specific minority, the concrete implementation of these articles through positive measures may produce specific rights for persons belonging to particular minority groups. (shrink)

New Threats to Freedom In the twentieth century, free people faced a number of mortal threats,ranging from despotism, fascism, and communism to the looming menace of global terrorism. While the struggle against some of these overt dangers continues, some insidious new threats seem to have slipped past our intellectual defenses. These often unchallenged threats are quietly eroding our hard-won freedoms and, in some cases, are widely accepted as beneficial. In New Threats to Freedom, editor and author Adam Bellow has assembled (...) an all-star lineup of innovative thinkers to challenge these insidious new threats. Some leap into already raging debates on issues such as Sharia law in the West, the rise of transnationalism, and the regulatory state. Others turn their attention to less obvious threats, such as the dogma of fairness, the failed promises of the blogosphere, and the triumph of behavioral psychology. These threats are very real and very urgent, yet this collection avoids projecting an air of doom and gloom. Rather, it provides a blueprint for intellectual resistance so that modern defenders of liberty may better understand their enemies, more effectively fight to preserve the meaning of freedom, and more surely carry its light to a new generation. What are the new threats to freedom? when has authority not claimed, when imposing trammels and curbs on liberty, that it does so for a wider good and a greater happiness?” —Christopher Hitchens “The regulatory state amounts to a regressive tax that penalizes small independent producers and protects the status quo.” —Max Borders “Europe tends to favor stability over democracy, America democracy over stability.” —Daniel Hannan “The value of free expression is perceived to be at odds with goals that were considered ‘more important,’ like inclusiveness, diversity, nondiscrimination, and tolerance.” —Greg Lukianoff “The masses cannot ultimately be free: only the individual can be.” —Robert D. Kaplan “That old bugbear of postwar sociology—the mob-self—is now a reality. In a participatory/popularity culture, the freedom to think and act for ourselves becomes harder and harder to achieve.” —Lee Siegel “As traditional marriage declines, the ranks of single women are growing, and increasingly these women are substituting the security of a husband with the security of the state.” —Jessica Gavora “Ending the freedom to fail is a mean-spirited attack on the freedom to succeed.” —Michael Goodwin “The only solution to the new threats to American press freedom lies in organized resistance.” —Katherine Mangu-Ward “The new behaviorism isn’t interested in protecting people’s freedom to choose; on the contrary, its core principle is the idea that only by allowing an expert elite to limit choice can individuals learn to break their bad habits.” —Christine Rosen “There’s a world of Travis Bickles out there, and they’re not driving cabs. They’re reading blogs.” —Ron Rosenbaum “The first amendment ensures not that speech will be fair, but that it will be free. It cannot be both.” —David Mamet Join the conversation about these issues at www.newthreatstofreedom.com. (shrink)

When can ever be justified in banning a religious practice? This paper focusses on Martha Nussbaum's capabilities approach. Certain religious practices create a clash between capabilities where the capability to religious belief and expression is in conflict with the capability of equal status and nondiscrimination. One example of such a clash is the case of polygamy. Nussbaum argues that there may be circumstances where polygamy may be acceptable. On the contrary, I argue that the capabilities approach cannot justify polygamy (...) in any circumstance. Her approach rules out polygamy, but may not rule out all non-monogamous relationships, such as polyamory. Finally, I conclude that the capabilities approach would benefit from a more robust understanding of recognition. (shrink)

Paradigms of International Human Rights Law explores the legal, ethical, and other policy consequences of three core structural features of international human rights law: the focus on individual rights instead of duties; the division of rights into substantive and nondiscrimination categories; and the use of positive and negative right paradigms. Part I explains the types of individual, corporate, and state duties available, and analyzes the advantages and disadvantages of incorporating each type of duty into the world public order, with (...) special attention to supplementing individual rights with explicit individual and state duties. Part II evaluates how substantive rights and nondiscrimination rights are used to protect similar values through different channels; summarizes the nondiscrimination right in international practice; proposes refinements; and explains how the paradigms synergize. Part III discusses negative and positive paradigms by dispelling a common misconception about positive rights, and then justifies and defines the concept of negative rights, justifies positive rights, and concludes with a discussion of the ethical consequences of structuring the human rights system on a purely negative paradigm. For each set of alternatives, the author analyzes how human rights law incorporates the paradigms, the technical legal implications of the various alternatives, and the ethical and other policy consequences of using each alternative while dispelling common misconceptions about the paradigms and considering the arguments justifying or opposing one or the other. (shrink)

As a political movement inspired by a belief in fundamental equality and committed to eradication of embodied injustices, feminists have illuminated the politics of exclusion—the use of law and policy to grant rights, opportunities, privileges, and immunities to particular elite men while denying them to marginalized others. With the theorization of gender as an analytical category, feminist scholars have investigated how manifold policies have discursively produced hierarchies of citizenship structured by gender, race, and sexuality. This chapter provides an overview of (...) feminist contributions to policy studies, including key critiques of mainstream policy scholarship, an examination of feminist policy interventions and their mixed results ranging from attempts to eradicate sex discrimination in law and policy, the creation of women’s policy agencies, and the shift to gender mainstreaming. The chapter concludes with a discussion of the politics of equality, comparing nondiscrimination and equal opportunity approaches with structural and substantive conceptions of equality. (shrink)

The American Medical Association opinion “Physician Exercise of Conscience” is generally sound; its recommendations regarding notice, nondiscrimination, informed consent, referral, and non-abandonment are reasonable. Within its focus on individual physicians’ duties to particular patients, it could also emphasize that physicians should only share the reasons for their objections if patients express an interest and that they should only share the reasons in a respectful manner. The opinion, however, neglects wider time frames and higher levels of organization. It could comment (...) on physicians’ duty to form their consciences appropriately and to select specialities and practice settings that do not engender excessive conflicts. Given the number of physicians who are not self-employed and the role of law in establishing rights and responsibilities, the opinion could also address employers’, legislatures’, and courts’ obligations to balance protecting physicians’ integrity and assuring patients’ access to medical treatment. Addressing these wider perspectives would greatly strengthen the opinion. (shrink)

This chapter analyzes European social policy as a test case to comment on both the originality and the weakness of a unique supranational legal order, such as the one created in 1957 with the Treaty of Rome. Regulatory measures in social policy, related to equal treatment, nondiscrimination, and working conditions were implemented via hard law measures aiming at the harmonization of standards. The chapter also looks at the latest innovations in social policy brought about by the Lisbon Treaty. Article (...) 3 of the Treaty on European Union (TEU) mentions full employment among the objectives to be pursued in a social market economy. The economic and financial crisis has accentuated the problems of supranational coordination versus national initiatives and has given rise to exceptional austerity actions that have departed from the methods provided for in the treaty. (shrink)

The power of economic thinking can be explained by seven core principles which include accountability, investments, economy, incentive, freedom of choice, nondiscrimination and one price. By understanding and incorporating these principles, better decisions will be made on individual, corporate and government levels. To explain this thesis, the author offers analyses of key economists who have changed their views over time, an examination of major domestic and international issues, and an explanation of how economists can predict which politicians will be (...) successful. (shrink)

Amy Gutmann is a political philosopher who brings a critical, feminist, and multicultural read to John Dewey’s concept of democratic education. I begin by turning to Gutmann’s Democratic Education to see how she amends and extends Dewey’s concept of democracy in relation to education. I then explore her further development of deliberative democracy as a political theory in Democracy and Deliberation. We learn about her basic principles for democratic education, nonrepression and nondiscrimination, developed in her earlier work and the (...) addition of a third principle, deliberation, in Democracy and Disagreement, as she continues to aim to find ways for basic democratic values of liberty, opportunity, and mutual respect to thrive and for acceptable terms for social cooperation to further develop in a world where people disagree in significant ways. We find that Gutmann relies on a separation between moral ideals and political ideals to maintain the case for the value of deliberative democracy as a political ideal. There are problems such a separation creates from a transactional perspective of democracy-always-in-the-making. We consider if Gutmann’s theory will help us improve conditions for democracy someday, or not. (shrink)

Should a liberal constitution constrain the racially discriminatory actions of state as well as nonstate employers? This essay answers in the affirmative, arguing that once we take seriously the right to nondiscrimination on the basis of race in terms of employment, we realize that such a constitution must constrain the actions of both. In doing so, this essay draws from John Rawls’s four-stage sequence, a sequence that suggests one way philosophical principles translate into constitutional design. A Theory of Justice (...) is the go-to theory for a wide range of political issues from a perspective of liberal theory, but scholars have paid less attention to it and comparative constitutional law. I take up this neglected inquiry by focusing on the distinction between the horizontal and vertical effect of a right not to be discriminated against on the basis of race in matters of employment. My analysis draws from the United States Constitution and the Constitution of the Republic of South Africa. A vertical effect constrains state power: a right to nondiscrimination is violated only when a state or public body discriminates on the basis of race. A horizontal effect constrains nonstate actors: a private employer may violate rights by discriminating on the basis of race. I argue that, in line with the South African Constitution, Rawls importantly adopts a horizontal effect of the right not to be discriminated against on the basis of race by ensuring formal equality of opportunity. His theory of justice suggests that a liberal constitution ought to constrain the racially discriminatory actions of both state and nonstate employers. This, in turn, represents an important response to racism that occurs in the private sphere. (shrink)

The United States’ Genetic Information Nondiscrimination Act of 2008 was sweeping legislation intended to protect the privacy of genetic information and prevent discrimination based on genetic factors in health insurance and employment. It protects the genetic privacy of individuals in these contexts and limits the likelihood that genetic discrimination will occur. However, in the case of employment, it does so at the cost of safety, both to the individuals it is meant to protect and to others. On occasion, adherence (...) to the dictates of GINA could lead to serious and avoidable harm to many people. Odd as it may seem, then, there can be such a thing as justified genetic discrimination. There are times when knowledge of genetic factors and subsequent action overrides reasons against obtaining or using such information. Moreover, this knowledge can be obtained without violating one's genetic privacyx. (shrink)

In this contribution, I will argue that the image of a balance is often used to defend the idea of a trade-off. To understand the drawbacks of this line of thought, I will explore the relationship between online security technologies and fundamental rights, notably privacy, nondiscrimination, freedom of speech and due process. After discriminating between three types of online security technologies, I will trace the reconfiguration of the notion of privacy in the era of smart environments. This will lead (...) to an inquiry into the metaphor of the scale, building on the triple test regarding the justification of the limitation of fundamental rights such as privacy. The conclusion will be that in the case of a trade-off, infringing measures will have to be balanced by effective safeguards. No trade-off without balance. (shrink)

The genetic testing industry is in a period of potentially major structural change driven by several factors. These include weaker patent protections after Association for Molecular Pathology v. Myriad Genetics and Mayo Collaborative Services v. Prometheus Laboratories, Inc.; a continuing shift from single-gene tests to genome-scale sequencing; and a set of February 2014 amendments to the Clinical Laboratory Improvement Amendments of 1988 regulations and the Health Insurance Portability and Accountability Act Privacy Rule. This article explores the nature of these changes (...) and why they strain existing regulatory frameworks for protecting patients, research subjects, and other consumers who receive genetic testing.Oversight of genetic testing has, at least to date, had two major thrusts: privacy and ethical protections and traditional consumer health and safety regulations. Examples of the first are the Genetic Information Nondiscrimination Act and the HIPAA Privacy Rule, which after 2013 amendments expressly protects genetic privacy as well as other medical privacy. (shrink)

John Roemer points out that there are two views of equality of opportunity that are widely held today. The first, which he calls the nondiscrimination principle, states that in the competition for positions in society, individuals should be judged only on attributes relevant to the performance of the duties of the position in question. Attributes such as race or sex should not be taken into account. The second states that society should do what it can to level the playing (...) field among persons who compete for positions, especially during their formative years, so that all those who have the relevant potential attributes can be considered. -/- Common to both positions is that at some point the principle of equal opportunity holds individuals accountable for achievements of particular objectives, whether they be education, employment, health, or income. Roemer argues that there is consequently a “before” and an “after” in the notion of equality of opportunity: before the competition starts, opportunities must be equalized, by social intervention if need be; but after it begins, individuals are on their own. The different views of equal opportunity should be judged according to where they place the starting gate which separates “before” from “after.” Roemer works out in a precise way how to determine the location of the starting gate in the different views. (shrink)

A profound problem posed by education for any pluralistic society with democratic aspirations is how to reconcile individual freedom and civic virtue. Children cannot be educated to maximize both individual freedom and civic virtue. Yet reasonable people value and intermittently demand both. We value freedom of speech and press, for example, but want people to refrain from false and socially harmful expression. The various tensions between individual freedom and civic virtue pose a challenge that is simultaneously philosophical and political. How (...) can we resolve the tensions philosophically in light of reasonable political disagreements over the relative value of individual freedom and civic virtue? Instead of giving priority to one value or the other, this essay defends a democratic ideal ofconscious social reproduction, which consists of three principles:nonrepression, nondiscrimination, and democratic deliberation. (shrink)

People with disabilities are often denied equal access to organ transplantation despite long‐standing federal nondiscrimination mandates. Under the Americans with Disabilities Act and the Rehabilitation Act, people cannot be excluded from consideration for organ transplantation because of disability itself, or because of stereotypes or assumptions about the value or quality of life with a disability. Instead, decisions concerning whether an individual is a candidate for organ transplantation should be based on an individualized assessment of the patient and on objective (...) medical evidence. Recent legal developments underscore these basic guarantees and signal a new focus on the policies, practices, and attitudes that continue to compromise equal access to life‐saving organ transplants for people with disabilities. (shrink)

Increased international migration of health professionals is weakening healthcare systems in low‐income countries, particularly those in sub‐Saharan Africa. The migration of nurses, physicians and other health professionals from countries in sub‐Saharan Africa poses a major threat to the achievement of health equity in this region. As nurses form the backbone of healthcare systems in many of the affected countries, it is the accelerating migration of nurses that will be most critical over the next few years. In this paper we present (...) a comprehensive analysis of the literature and argue that, from a human rights perspective, there are competing rights in the international migration of health professionals: the right to leave one's country to seek a better life; the right to health of populations in the source and destination countries; labour rights; the right to education; and the right to nondiscrimination and equality. Creative policy approaches are required to balance these rights and to ensure that the individual rights of health professionals do not compromise the societal right to health. (shrink)

Congress passed the Genetic Information Nondiscrimination Act of 2008 in order to remove a perceived barrier to clinical genetic testing. By banning health insurance companies and employers from discriminating against an individual based on his or her genetic information, legislators hoped that patients would be encouraged to seek genetic testing that could improve health outcomes and provide opportunities for preventive measures. Their explicit legislative goal was to fully protect the public from discrimination and allay their concerns about the potential (...) for discrimination, thereby allowing individuals to take advantage of genetic testing, technologies, research, and new therapies.However, GINA left a number of issues unresolved, most notably failing to define the concept of disease manifestation. GINA was structured such that it only provides protection against misuse of genetic information up until the point when an individual's disease has manifested. It protects an individual with a genetic predisposition for a disease, but not an individual actively suffering from that disease. (shrink)

This article reviews recent developments in health care law, focusing on the engagement of law as a partner in health care innovation. The article addresses: the history and contents of recent United States federal law restricting the use of genetic information by insurers and employers; the recent federal policy recommending routine HIV testing; the recent revision of federal policy regarding the funding of human embryonic stem cell research; the history, current status, and need for future attention to advance directives; the (...) recent emergence of medical–legal partnerships and their benefits for patients; the obesity epidemic and its implications for the child’s right to health under international conventions. (shrink)

In recent years, the amount of data in the world is growing rapidly. Data growth also occurs in the government sector. All ministries and institutions at every level are data producers. These government-owned data have a high potential if they can be used properly. Open government data can stimulate innovation and economic growth and enhance business models. In order to increase the willingness of citizens to use open government data and enjoy the benefits mentioned, the quality of open government data (...) needs to be improved. The quality of open government data encompasses a variety of dimensions and criteria. Also, the importance of each dimension and criterion in increasing the quality of open government data is different. Therefore, we are faced with a complex system that requires proper decision-making and management. In fact, we are dealing with decision-making in the complex management system. Given the importance of this issue, the purpose of this study is to provide a new and comprehensive method to improve the quality of open government data and increase the willingness of citizens to use the data by considering the complex network of citizens and organizations. For this purpose, library studies have been used to extract comprehensive and effective dimensions and criteria. The statistical population includes all articles related to the criteria of improving the quality of open government data and increasing the willingness of citizens to use the data. The probabilistic sampling method of simple random samples has been used, and 10 articles in this field have been reviewed. After extracting the criteria as well as the data of 112 governmental organizations and institutions related to each criterion from the open data portal, the complex network of citizens and governmental organizations and institutions has been analyzed in order to identify high-degree centrality organizations. Then, the data characteristics of the organizations that were most desired by the citizens were extracted using data mining techniques including the regression model. Also, field method and multicriteria decision-making technique including the DEMATEL technique have been used to express the solutions and identify the cause-and-effect relationships between the solutions. The criteria extracted in improving the quality of open government data and increasing the willingness of citizens to use the data are included: “data originality,” “license openness,” “up-to-datedness,” “data access,” “metadata completeness,” “number of data sets,” “format openness,” “nondiscrimination,” “understandable,” “number of categories of data sets,” “free,” “lack of missing data,” “data request ability,” “visualization,” “feedback,” and “data subject matter.” Based on the results obtained from the analysis of the complex network and the regression model, the criterion of “society subject” with a coefficient of 72.564 and a positive sign has the greatest impact on increasing the number of citizens' visits to open government data. After that, the criterion of “format openness” with a coefficient of 52.682 and a positive sign has the second rank in increasing the number of visits. Extracting comprehensive and effective criteria in improving the quality of open government data and increasing citizens' willingness to use data, calculating the weight and importance of each criterion by analyzing the complex network of citizens and organizations, as well as providing solutions, can help managers in decision-making and proper management in the complex system of citizens and government organizations. (shrink)

A recent trend in scholarship argues that certain features of affirmative action logic, such as group identification, quotas, and preferential treatments would be contradictory to principles of individual merit, nondiscrimination, and personal achievement that were once advocated by Martin Luther King, jr. On the contrary this paper will argue that King’s authority may be understood to clearly support the emergence of affirmative action principles. Furthermore, King offered an ethical framework that may prove helpful in resolving many of the problems (...) that arise within an affirmative action environment, with special consideration given to gender. (shrink)

It has been pending in Congress for twelve years, despite the support of the last two presidential Administrations and the National Institutes of Health. It has been the subject of extensive affirmative lobbying by academic medical centers, pharmaceutical and biotech companies, genetic disease advocacy groups, and civil rights organizations. It has overcome vehement objections by employers and insurers. Its final passage, however, has been thwarted by a few Congressional leaders, who have prevented enactment despite overwhelming bipartisan support in both houses (...) of Congress.Based on this legislative history, one could not help but assume that the Genetic Information Nondiscrimination Act is a revolutionary piece of legislation that, if finally enacted, would provide extensive, effective, and comprehensive protection against genetic discrimination in health insurance and employment Unfortunately, such an assessment would be incorrect. Indeed, GINA may be a case of too much ado about too little. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Japan Society for Buddhist-Christian Studies:A Report on the 2008 Annual MeetingTerao KazuyoshiThe 2008 annual meeting of the Japan Society for Buddhist-Christian Studies was held at the Palace Side Hotel in Kyoto on 1–3 September. The main theme of the meeting was the "Possibility of Religious Philosophy." The meeting consisted of four sessions, one research presentation, and a general overview on the final day.Two sessions were staged on the (...) first day. They dealt with a reconsideration of the religious philosophy of Jan Van Bragt (1928–2007), following the meeting in 2007, which generally covered his academic contributions. First, Keta Masako (Kyoto University) read a paper titled "A Configuration in the Contemporary World: A Response to Jan Van Bragt's Expectation and Disappointment at the Kyoto School of Philosophy." (Unfortunately I was unable to attend this session, so I am not able to summarize the presentation.) Next, Hanaoka Eiko (Nara University of Industry) presented a paper titled "In Search of the New Possibility of Religious Philosophy: Fundamental Experience and a Turning Point for Philosophy." She insisted that we need to keep in mind an overview of the religious philosophies of Nishida Kitaro, Tanabe Hajime, and Nishitani Keiji in order to understand Van Bragt's criticism of the Kyoto school. Nishida's ideas of the "logic of the place of nothingness" and the "unity of mind and body" work together, she suggested; this polarity was "one," in accordance with the idea of the "self-identity of absolute contradictions." But in Hanaoka's opinion, Van Bragt sometimes placed a disproportionate emphasis on one side of the polarity. Hanaoka identified ten polarities in Nishida's absolute nothingness: (1) philosophy of self-awareness and philosophy of existence, (2) substantial philosophy and non-substantial philosophy, (3) experience and rationality, (4) plurality and unity, (5) continuity and discontinuity, (6) temporality and eternity, (7) matter and spirit, (8) process and reality, (9) true self and ego, and (10) philosophy and the philosophy of philosophy. Hanaoka argued that Van Bragt's doubts would have disappeared if he had fully experienced love as that which emanates from the "oneness" of the polarity of absolute nothingness.On the second day of the meeting, Peter Baekelmans gave a presentation titled "The Faith of The Awakening Faith in Mahayana." While Baekelmans studied Buddhism, [End Page 147] particularly esoteric Buddhism, at Koyasan University, he became acquainted with the Daijōkishinron (The awakening faith in Mahayana) and began to translate it into English. He found that the Hindu term śraddhā meant both "hope for achieving the goal" and "confidence in the method," and that the former corresponded to the "faith of Mahayana" and the latter to the "generation of faith of Mahayana." Baekelmans then attempted to demonstrate that the Awakening of Faith was composed in India. In addition, from the perspective of phenomenology he argued that belief as the essence of the religious phenomenon and practice as the phenomenon itself together form a unified spirituality. The deeper that belief becomes, he said, the less important the difference between belief and practice becomes. Some textual scholars in the audience objected to that line of thought, suggesting that we needed more circumspect analysis in order to accept such a perspective.At the third session, Kim Seung-Chul (Kinjōgakuin University) read a paper on "Christian Theology Facing Religion and Science." He called the relation of religion and science a "double reflection," referring to theories by sociobiologist Edward O. Wilson and philosopher of science Ian Barbour. Kim interpreted religion and science in Nishitani as a "superposition" of existential order. Kim focused on two meanings of nondiscrimination according to Nishitani: "nondiscrimination in nature," found in science, and "nondiscrimination in love," found in religion. The former was symbolized by matter and the latter by life. The place where these two nondiscriminations coincide, he said, is exactly the "standpoint of emptiness." Kim concluded that we must recognize that this "standpoint of emptiness" was the place where the "problem of Christianity and other religions" and the "problem of Christianity and science" can be dealt with simultaneously as "in an absolutely equal status" for their resolution.Kobayashi Enshō (Hanazono University), the respondent to Kim's paper... (shrink)

In many ways, the struggle for gay and lesbian rights has come of age, and mainstream politics in the USA shows signs of embracing the votes and monetary contributions of organized gay and lesbian constituents. But the author warns that a movement for sexual liberation pays too high a price when it mimics a conservative language of “family values.” Since the framework of “family” language is implicated in structures of heteronormativity and patriarchy, sexual liberation that plays the “family language” game (...) will be drawn into a narrowing politics of nondiscrimination. Furthermore, argues the author, the right to marry cannot be considered a human right, since it is always bound to local statutes and custom. Therefore, gay and lesbian liberation that seeks truly universalizable principles will do better to not ensnare its struggle in “family values.”. (shrink)