Privacy versus Antidiscrimination

Privacy and Security

Article Snapshot


Lior Strahilevitz


75 University of Chicago Law Review 363, 2008


The author argues that the privacy protections are actually harmful to antidiscrimination laws in some contexts.

Policy Relevance

Statistical discrimination often results when privacy protections prevent full access to an applicant’s profile, especially in the context of criminal histories. The best countermeasure is creating easier and fuller access, not government restriction of access to such information.

Main Points

  • Research published in the Journal of Law and Economics by Holzer, Raphael, and Stoll shows how prevalent statistical discrimination is and that antidiscrimination laws are ineffective in curtailing it.
  • This research is the state of the art. Other studies have had conflicting results from the use of data sets with too many variables. Moreover, most other results are preliminary, ambiguous, and have not made it past peer review.
  • The basic finding of the Holzer research is that employers who do not do criminal background checks are less likely to hire African-American employees because of statistical discrimination.
  • Government solutions to statistical discrimination that rely on reducing the amount of information that can be accessed about an applicant to prevent racial or gender discrimination are ineffective.
  • In today’s information age, statistical discrimination should be combated by providing more information about an applicant to employers. This way, facts like race or gender will not be overemphasized when seen in comparison to the candidate’s overall profile.
  • This strategy would work in statistical discrimination cases, but only when there is not a prevalence of animus-based discrimination. Otherwise, fewer privacy protections would make it easier for animus-based discriminators to find non-pretext reasons for discrimination.
  • An approach that reduces privacy protections to further access to information must provide accurate information, or else it fails.
  • However, the government should not publish protected information such as HIV status to further this sort of policy. Taking such a stance would do more harm than good because of the perception that HIV status has in this country.


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