Protecting privacy to prevent discrimination.

• Author: Roberts, Jessica L.
• Position: Introduction through II. The Privacy/Antidiscrimination Symbiosis in Action A. GINA's Protections, p. 2097-2132

ABSTRACT

A person cannot consider information that she does not have. Unlawful discrimination, therefore, frequently requires discriminators to have knowledge about protected status. This Article exploits that simple reality, arguing that protecting privacy can prevent discrimination by restricting access to the very information discriminators use to discriminate. Although information related to many antidiscrimination categories, like race and sex, may be immediately apparent upon meeting a person, privacy law can still do significant work to prevent discrimination on the basis of less visible traits such as genetic information, age, national origin, ethnicity, and religion, as well as in cases of racial or gender ambiguity. To that end, this Article explores the advantages and disadvantages of enacting privacy protections to thwart discrimination. It concludes that the weaknesses endemic to privacy law might be addressed by adopting an explicit antidiscrimination purpose. Hence, just as privacy law may further antidiscrimination, so may antidiscrimination enhance privacy law.

TABLE OF CONTENTS INTRODUCTION I. INTRODUCTION TO THE PRIVACY/ANTIDISCRIMINATION SYMBIOSIS A. Privacy/Antidiscrimination Essentialism 1. Privacy 2. Antidiscrimination B. Privacy and Antidiscrimination as Related Concepts 1. Privacy 2. Antidiscrimination C. Privacy/Antidiscrimination Symbiosis II. THE PRIVACY/ANTIDISCRIMINATION SYMBIOSIS IN ACTION A. GINA's Protections B. GINA as Symbiotic Legislation III. THE PRIVACY/ANTIDISCRIMINATION SYMBIOSIS ANALYZED A. Beyond Genetic Information B. Privacy's Advantages 1. Elimination of Proof of Employer Mindset 2. Preemption C. Privacy's Disadvantages 1. Hindrance of Beneficial Disclosures 2. Legislative and Judicial Reluctance D. Antidiscrimination as a Solution 1. Antisubordination to Facilitate Positive Disclosures 2. Antidiscrimination Harms as Extrinsic Privacy Harms E. A Final Caveat CONCLUSION INTRODUCTION

A young woman working at a sporting goods store was demoted following her boss's discovery that she self-identified as black. (1) A bank terminated a recent hire, whom it had recruited aggressively, when human resources found out she was over sixty-five years old. (2) A man was fired from a financial institution after his supervisor learned he was of Iranian descent. (3) A medical clinic withdrew a woman's job offer when personnel documents revealed she had been born a man. (4) And a married couple teaching in a public school system faced discrimination after the district discovered they were Jehovah's Witnesses. (5) These cases share a common theme. In each of them, the employer obtained previously unknown information about the employee, which opened the door for subsequent discrimination.

These examples reveal that in certain circumstances, discriminators need information to discriminate. To discriminate on the basis of national origin or religion, an employer must first have some knowledge of an employee's roots or beliefs. Now imagine a world in which employers could not ask about the protected statuses of their employees. It would be markedly more challenging--perhaps even impossible--for an employer to base conscious or unconscious decisions on the employee's national origin or religion, simply because the employer has less information. The same holds true for other antidiscrimination categories such as genetic information, age, ethnicity, disability, and, at times, even race and sex. Restricting potential discriminators' access to information about protected status can significantly reduce the chances of subsequent discrimination. In addition to supporting ordinary bans on adverse differential conduct, antidiscrimination advocates could also endorse privacy protections crafted to limit access to information about protected statuses. (6)

Yet despite this connection between information and action, lawmakers and commentators often treat privacy and antidiscrimination as separate, unrelated spheres of law. Privacy/antidiscrimination essentialism proceeds as follows: Laws governing privacy seek to protect individuals from unwanted invasions into their personal lives. Those legal safeguards usually operate either by restricting the circumstances of valid disclosures or by prohibiting inquiries by certain kinds of third parties. (7) Because decisions related to who may obtain private information and under what circumstances should be a matter of individual control, the underlying norm behind these protections has frequently been identified as autonomy--the ability to make choices about one's self and well-being free from the intrusions of others. (8) By contrast, antidiscrimination laws attempt to stop disadvantage on the basis of protected status, frequently through prohibiting the covered decision makers from considering that status when making particular types of determinations. (9) Antidiscrimination legislation is thus animated by distinct concerns of equality and fairness. (10) The apparent differences in the underlying norms, legislative purposes, and structures of these protections have frequently led lawmakers, commentators, and scholars to regard statutes designed to protect privacy and statutes designed to stop discrimination as occupying different domains.

This Article rejects that view, and instead shows that these fields operate symbiotically rather than separately. In particular, it argues that privacy law can do the work of antidiscrimination. Conceptually, the norms of privacy and antidiscrimination are inextricably related as both deal with restrictions on certain kinds of information. (11) By consequence, legal protections that at first blush appear geared solely to further the purpose and norms more readily associated with privacy can likewise further the purpose and norms of antidiscrimination. Privacy protections can prevent access to the very information that discriminators may use to discriminate, acting as a bulwark against harmful differential conduct. Privacy constitutes an exciting yet largely unexplored means to combat discrimination in cases in which the potential discriminator lacks knowledge related to a given protected status.

The Genetic Information Nondiscrimination Act (GINA) provides a useful example of the privacy/antidiscrimination symbiosis. (12) The statute prohibits employers from requesting, requiring, or purchasing genetic information, in addition to its proscription on discriminatory conduct. (13) Instead of accepting the view that GINA's privacy and antidiscrimination protections are separate, I assert that violations of genetic privacy can be understood in explicitly antidiscrimination terms. (14) Viewed from this vantage, GINA's privacy provision is not separate from, but rather part of GINA's antidiscrimination mandate. This observation not only illuminates Congress's intent in passing GINA but also provides champions of civil rights with a real-world example of how privacy protections have the power to stop discrimination. Taking a cue from GINA, this Article then explores how privacy law might create an added level of protection against discrimination in contexts beyond genetic information when the potential discriminator does not have access to the relevant information.

Privacy law offers some clear benefits as a mechanism for undermining discrimination. Whereas claims of discrimination may require claimants to meet the challenging burden of establishing the mental state of their alleged discriminators, privacy law requires only a showing that the covered entity inappropriately obtained, or attempted to obtain, the protected information. (15) Protecting privacy is also advantageous because it operates at an earlier stage in the process of discrimination. (16) Antidiscrimination law prohibits discriminatory actions by outlawing certain types of conduct, but privacy law renders the offensive conduct practically impossible by impeding access to the information necessary for the unfavorable differentiation. Hence, privacy law could at times be a more effective tool for combating discrimination than typical antidiscrimination protections.

Despite its clear advantages, privacy law also presents notable drawbacks as a vehicle for stopping discriminators. First, strong privacy protections or norms may impede useful disclosures. (17) Robust privacy protections or their accompanying values could encourage individuals to conceal information related to protected status, even in cases when disclosure could be beneficial personally (for example, necessary for affirmative action or accommodation) or socially (for example, consciousness raising). Beyond silencing potentially beneficial disclosures, privacy law faces other practical impediments as an antidiscrimination instrument. In particular, because invasions of privacy constitute a dignitary harm, legislators and judges may hesitate to provide relief for those violations absent some other bad effect. (18) Yet in these circumstances, antidiscrimination can also assist privacy.

Recognizing that privacy law can preempt future wrongdoing could make lawmakers, who are reluctant to protect against purely dignitary harms, more amenable to safeguarding sensitive information. Consequently, legislators may be more likely to draft, and judges more likely to enforce, a privacy protection when it is tethered to an antidiscrimination initiative, as in the case of GINA. Antidiscrimination could thus further privacy by creating incentives to share protected information when it could have a beneficial impact, and by providing an additional justification for legal intervention. Antidiscrimination could, as a result, mitigate concerns associated with privacy law, such as undesirable silencing and the absence of a tangible harm.

Although other scholars have touched upon the privacy/antidiscrimination symbiosis to prevent genetic-information discrimination, relatively little has been written on this...