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80 Cornell L. Rev. 1646 (1994-1995)
Race Sex and Genetic Discrimination in Insurance: What's Fair

handle is hein.journals/clqv80 and id is 1720 raw text is: NOTES RACE, SEX, AND GENETIC DISCRIMINATION IN INSURANCE: WHAT'S FAIR' INTRODUCTION What's fair? Only a philosopher or a lexicographer could begin to answer this question in the abstract. But consider its application in the following contexts: (1) Ed, a fifty-year-old black man, applies for life insurance in order to provide financial security for his family. The insurance com- pany offers Ed a policy, but charges him a higher premium than it charges fifty-year-old white men because statistics show that black men tend to have shorter life spans than white men. (2) Carlos, a forty-year-old man, applies for the disability insur- ance offered by his employer. Because a recent genetic test showed that he is especially susceptible to a certain degenerative disease, Car- los must pay almost twice the amount his co-workers pay to receive the same level of coverage. (3) Marie, a thirty-year-old woman, and her twin brother George apply to the same company for health insurance. Because women, on average, tend to use health care services more frequently than men, the company charges Marie much more than it charges George for similar coverage. All three situations are arguably unfair: Ed, Carlos, and Marie could each claim that insurers should not be able to classify individu- als in these ways. Ed would have the law on his side in every state,1 and Carlos could challenge the insurer's decision under the laws of an increasing number of states.2 Marie, on the other hand, could appeal to the laws of only one state.3 I Ed would have a claim under state laws banning unfair discrimination or laws expressly prohibiting the use of race as a classifier. See infra parts I.B.3, IIA. Here and in the following paragraphs this Note refers to overall trends in the law. Complexities, to the extent that they are relevant, are discussed in Part II. This Note dis- cusses only personal lines of insurance (annuities and health, life, disability, auto, property, and liability insurance). The fair discrimination doctrine has not been applied to com- mercial lines of insurance, because these lines rely on individual assessments of risk for each insured, rather than hard-and-fast risk classifications. 2 See infra part II.C. 3 Montana is the only state that bans the use of gender as a classifier for every type of insurance. MONT. CODE ANN. § 49-2-309 (1993). Marie could appeal to federal law, how- ever, if the health insurance plan was offered through her employer. See infra parts I.B.2, IE.B. 1646

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