Privacy as a Tool for Antidiscrimination

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 geneticinformation 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. * Assistant Professor of Law, University of Houston Law Center. Thank you to Aaron Bruhl, Brad Areheart, Jessica Clarke, Dave Fagundes, and Mark Rothstein for reading and commenting on drafts. I presented early versions of this Essay during the 3rd Annual National Conference on Genetics, Ethics, & the Law at the University of Virginia Law School and the 2013 ASU Legal Scholars Conference, so my gratitude likewise goes to the participants of those workshops. Many thanks to Chelsea Averill and Zachary White for research assistance and Emily Lawson for library help. ii PRIVACY 1 August 2013