Antidiscriminatory Information Rules
45 Pages Posted: 19 Apr 2018 Last revised: 17 Oct 2018
Date Written: April 2, 2018
Law often regulates the flow of information to prevent discrimination. It does so, for example, in landlord-tenant relationships, disability law, and employment discrimination law. But it does so without a cohesive framework to determine when it is warranted. As a result, the success of these measures is mixed, sometimes effectively preventing discrimination and sometimes leading to nation-wide controversies. In this essay, I address this gap and offer a framework to determine when information should be allowed to flow and when it should not in order to prevent discrimination.
To do so, I focus on the employment context. I analyze two case studies: the study on discrimination against female musicians and the ‘Ban the Box’ controversy. I propose that the success of these policies depends on the role of proxies for the information that is blocked, and explore when antidiscriminatory privacy rules should block those proxies as well. I then evaluate the information dynamics of privacy and discrimination in economics and identify the conditions under which it is more effective to block information than to allow it.
This framework presents a series of benefits. From a theoretical standpoint, it sheds light on the relationship between information and discrimination and shows how privacy protects wider social values. From a policy standpoint, it produces a more robust precautionary approach to antidiscrimination, it helps predict the effectiveness of antidiscriminatory information rules before they take effect, and it casts a wider protection to minorities. From a doctrinal perspective, it allows for disparate impact-like protection against facially-neutral decisions while remaining under a disparate treatment logic. At a technology policy level, it provides a tool to address algorithmic discrimination.
Keywords: Privacy, discrimination, algorithmic decisionmaking, algorithmic discrimination, disparate treatment, disparate impact
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