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Unpublished Paper
Privacy as a Tool for Antidiscrimination
ExpressO (2013)
  • Jessica Roberts
Abstract
Traditionally, laws that protect privacy and laws that prohibit discrimination have been considered distinct kinds of legal protections. This Essay challenges that binary on both practical and theoretical grounds. Using the Genetic Information Nondiscrimination Act (GINA) as a case study, it argues that lawmakers can use privacy law to further antidiscrimination goals. GINA, which prohibits genetic-information discrimination in health insurance and employment, does more than simply outlaw discriminatory conduct. It also prohibits employers from requiring—or even requesting—their employees’ genetic information. While GINA’s privacy and antidiscrimination protections have previously been viewed as discrete, this Essay reads them in concert, arguing that restricting access to information about protected status can thwart future discrimination by denying potential discriminators the very information they would use to discriminate. Informed by this perspective, the Essay explores the advantages and disadvantages of using privacy law as a tool for antidiscrimination, in the context of genetic information and beyond. Finally, the Essay concludes that the weaknesses endemic to privacy law might be addressed by adopting an explicit antidiscrimination purpose. Thus, just as advocates of antidiscrimination may look to privacy law, advocates of privacy protections can look to antidiscrimination.
Keywords
  • privacy,
  • antidiscrimination,
  • employment,
  • legislative intent,
  • genetic information,
  • race
Publication Date
July 31, 2013
Citation Information
Jessica Roberts. "Privacy as a Tool for Antidiscrimination" ExpressO (2013)
Available at: http://works.bepress.com/jessica_roberts/2/