GINA, Privacy, and Antisubordination

Abstract

This Essay briefly considers both the current and optimal role of privacy in employment discrimination jurisprudence. The recently passed Genetic Information Nondiscrimination Act (GINA) is illustrative of one way to value privacy through employment discrimination mandates. In particular, GINA includes a prohibition on the use of genetic information in all employment decisions, affording a measure of genetic privacy to potential and current employees.

GINA stands in contrast to prior employment discrimination statutes, which have often encouraged or required employers to be knowledgeable of and consider particular identity traits through policies such as reasonable accommodation and affirmative action, and the disparate impact doctrine. There is thus a tension between privacy and effectuating certain employment discrimination policies that are directed toward antisubordination ends. After exploring the tension that sometimes exists between privacy and antisubordination, this Essay argues that, in the statutory areas of the Americans with Disabilities Act and GINA, foregoing privacy is often desirable in order to fight subordination by employees revealing, and employers considering, particular health traits and information.

Keywords: GINA, Privacy, Antisubordination, Anticlassification, Antidiscrimination, ADA, Employment Discrimination, Disability, Genetic Information, Civil Rights, Disclosure

JEL Classification: I00, I10, I12, J70, J71, J78, J79