Thursday, March 5, 2009
Jessica Roberts (Columbia fellow) has just posted on SSRN her article Preempting Discrimination: Lessons from the Genetic Information Nondiscrimination Act. Here's the abstract:
Later this year, the Genetic Information Nondiscrimination Act (GINA) of 2008 goes into effect. GINA 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, 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 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, concluding that GINA's preemptive nature may be its greatest attribute as well as its deepest flaw.