Public Law & Legal Theory
This essay argues that there is often an essential conflict between information privacy protections and antidiscrimination principles. Where information privacy law or practical obscurity deprives an employer of pertinent information about a job applicant, the employer often will rely more heavily on distasteful statistical discrimination strategies. For example, the existing empirical evidence suggests that criminal background checks may benefit African American male job applicants as a whole, by permitting employers to sort among ex-cons and those lacking criminal records. In the absence of accurate criminal history information, employers concerned about keeping ex-offenders out of their workplace appear to hire too few African American males – penalizing African American males without criminal records and hiring ex-cons who are members of groups with low offending rates. The essay therefore argues that in the employment context, the government should use information policy as a supplement to traditional antidiscrimination law. More precisely, the government can publish previously private information about individuals so as to discourage decisionmakers’ reliance on problematic proxies. An important implication of this insight is that there may be strong antidiscrimination rationales for Megan’s Laws, more recent efforts by a handful of jurisdictions to make general criminal history information freely available on the Internet, and government subsidies for programs that make employee’s prior work evaluations easily available to prospective employers. The essay further explains why in those settings where the reintegration of ex-cons into the workplace creates societal benefits, information privacy protections for criminal history status will rarely, if ever, be the most appropriate tool for achieving those benefits. The essay concludes by identifying situations in which publishing previously private information about individuals would be a poor strategy for decreasing the prevalence of discrimination.
Lior Strahilevitz, "Privacy versus Antidiscrimination" (University of Chicago Public Law & Legal Theory Working Paper No. 174, 2007) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1003001..