The Genetic Information Nondiscrimination Act as an Antidiscrimination Law

This Article provides the first in-depth reading of the Genetic Information Nondiscrimination Act (GINA) as an antidiscrimination statute. GINA, touted as the first major civil rights legislation of the new century, passed in May 2008. Thus, both to understand GINA\u27s potential impact, as well as to improve its efficacy, the statute must be analyzed as an antidiscrimination law. When read as an antidiscrimination statute, GINA takes a clear position on one of the most contested issues in that area of law: antisubordination versus anticlassification. This debate queries whether antidiscrimination law should seek to elevate the social status of certain subordinated groups or should prevent all consideration of particular forbidden characteristics. GINA as currently drafted plainly favors anticlassification;it protects individuals from any intentional differential treatment by health insurers or employers based on genetic information. In contrast, an antisubordination approach to protecting genetic information would focus not on outlawing all forms of intentional, differential treatment, but on preventing a genetic underclass from forming. In particular, an antisubordination framework would allow employers to consider genetic information for accommodation purposes and victims of discrimination to challenge facially neutral policies that produce discriminatory results. This Article Reprinted by permission of the publisher

Nudge-Proof: Distributive Justice and the Ethics of Nudging

A review of Cass R. Sunstein, The Ethics of Influence: Government in the Age of Behavioral Science

Preempting Discrimination: Lessons from the Genetic Information Nondiscrimination Act

The Genetic Information Nondiscrimination Act ( GINA\u27), enacted in May 2008, 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, but 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 currently 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. It concludes that GINA\u27s preemptive nature may be both its greatest attribute and its deepest flaw

Panes/Pains of Privilege

In Panes of the Glass Ceiling, Kerri Lynn Stone explores how unspoken beliefs rooted in gender stereotypes contribute to workplace inequalities for women. This article, reflecting on Stone\u27s work, discusses how Stone critiques employment discrimination law\u27s inadequacy in addressing these issues and proposes reforms, emphasizing the need for cultural changes beyond legal remedies. The article contextualizes Stone\u27s observations within the framework of privilege, underscoring the invisible nature of privilege in the workplace and advocating for a broader societal shift to dismantle deeply ingrained unspoken beliefs

Conclusions from the Body: Coerced Fatherhood and Caregiving as Child Support

With Samuel Alito likely to replace Sandra Day O\u27Connor on the Supreme Court, many feminists question what will become of reproductive freedom. If, in fact, American women are going to receive less and less access to contraception and abortion, we are presented with the issue of how to deal with the inevitable outcome of unwanted pregnancies: children. While choice should remain central to the feminist movement, child support provides an alternate rallying point in an era of reproductive restriction. We must force courts and legislatures to examine what happens after the pregnancy, including the roles of parents in raising children. This issue is relevant to all pregnancies, not just those that will result from further limitation of reproductive freedom

Accommodating the Female Body: A Disability Paradigm of Sex Discriminatio

This Article presents a novel approach for understanding sex discrimination in the workplace by integrating three distinct areas of scholarship: disability studies, employment law, and architectural design. Borrowing from disabilities studies, I argue that the built environment serves as a situs of sex discrimination. In the first Part, I explain how the concept of disability has progressed from a problem located within the body of an individual with a disability to the failings of the built environment in which that person functions. Using this paradigm, in the next Part, I reframe workplaces constructed for male workers as instruments of sex discrimination. I then explain how built environments intended for the male body constitute disparate impact under Title VII. In the final Part, I present the architectural school of universal design, which has been a source of crucial innovation in the area of disability rights, as a means for both de-abling and de-sexing the workplace

Progressive Genetic Ownership

Recently, property law scholars have challenged neoclassical economic theory as the primary lens for understanding ownership. As an alternative to the all-too-familiar concepts of welfarism, rational choice theory, and cost-benefit analysis, they offer “progressive property,” a school of thought grounded in value pluralism, communitarianism, and redistribution. To date, much of the progressive property literature has focused exclusively on land use. This Article tests the versatility of this new property school by applying it to a novel context: genetic ownership. As with real property, discussions surrounding genetic ownership have been entrenched in the language of neoclassical economics. Given the proliferation of deontological concerns related to genetic research—such as privacy, identity, autonomy, and social justice—neoclassical economic theory is woefully incomplete as a theory of genetic ownership. Progressive property promises a more complete approach. Yet this conclusion does not establish progressive property as universally appropriate. Certain unexpected similarities exist between land and genetic data. Thus, while progressive property is well-suited to situations dealing with unique objects of ownership that raise deontological and distributive concerns, it should not necessarily supplant neoclassical law and economics for resolving all legal disputes regarding the ownership