Preempting Discrimination: Lessons from the Genetic Information Nondiscrimination Act

52 Pages Posted: 14 Feb 2009 Last revised: 9 Feb 2014

Jessica L. Roberts

University of Houston Law Center

Date Written: May 20, 2009

Abstract

The Genetic Information Nondiscrimination Act (“GINA”), enacted in May 2008, protects individuals against discrimination by insurance companies and employers on the basis of genetic information. GINA is not only the first civil rights law of the new millennium, but it is also the first preemptive antidiscrimination statute in American history. Traditionally, Congress has passed retrospective antidiscrimination legislation, reacting to existing discriminatory regimes. However, little evidence indicates that genetic-information discrimination is currently taking place on a significant scale. Thus, unlike the laws of the twentieth century, GINA attempts to eliminate a new brand of discrimination before it takes hold. This Article provides a detailed look at this unprecedented new statute, beginning with its initial introduction in 1995. Next, the Article examines the justifications for passing preemptive genetic-information discrimination legislation, concluding that Congress had twin objectives: a research justification and an antidiscrimination justification. Lastly, the Article explores the implications of passing antidiscrimination legislation absent a history of discrimination. It concludes that GINA’s preemptive nature may be both its greatest attribute and its deepest flaw.

Keywords: antidiscrimination, discrimination, law, genetics, genetic information, employment discrimination, health insurance, legislative history, legislation

JEL Classification: K19, K30, J71

Suggested Citation

Roberts, Jessica L., Preempting Discrimination: Lessons from the Genetic Information Nondiscrimination Act (May 20, 2009). Vanderbilt Law Review, Vol. 63, No. 2, 2010. Available at SSRN: https://ssrn.com/abstract=1342903

Jessica L. Roberts (Contact Author)

University of Houston Law Center ( email )

Houston, TX 77204
United States

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