Publication Date



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 a possible
trend in employment discrimination toward privacy. 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
GINA stands in contrast to prior employment
discrimination statutes, which have often encouraged or
required employers to be knowledgeable of and consider a
particular identity trait through policies such as
reasonable accommodation, 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 (ADA) and GINA, it is
preferable to forego privacy to fight subordination by
taking account of particular health-related traits and