78 Pages Posted: 12 May 2013 Last revised: 6 Jun 2016
Date Written: May 31, 2015
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.
Keywords: antidiscrimination, privacy, employment discrimination, race, sex, national origin, religion, age, disability
JEL Classification: J71
Suggested Citation: Suggested Citation
Roberts, Jessica L., Protecting Privacy to Prevent Discrimination (May 31, 2015). 56 WM & MARY L. REV. 2097 (2015). Available at SSRN: https://ssrn.com/abstract=2263583 or http://dx.doi.org/10.2139/ssrn.2263583