GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2011

Status

Accepted

Abstract

Knowledge is power; so, too, is the ability to control access to knowledge. When employers have access to information about protected traits — race, sex, religion, caregiving responsibilities, and so on — they may rely on stereotypes or otherwise discriminate on the basis of these traits in making hiring decisions. In recognizing that knowledge provides the power to discriminate, employment law regulates what information is available to employers during the hiring process. Federal and state laws place limits on an employer’s ability to inquire about aspects of a prospective employee’s identity at the hiring stage. Once an employee is hired, however, the law provides no mechanism to reintroduce the protected traits into the employment relationship. Laws barring access to employees’ protected traits then not only impede the exercise of bias in hiring, but also place these traits outside of work life for the duration of the employment relationship, impeding accommodation of these traits. In this way, regulation of preemployment inquiries is an overinclusive approach to preventing hiring discrimination. The extensive breadth of these regulations has ramifications not currently addressed in employment law or scholarship. This Article explores employment law’s reliance on ignorance to achieve fairness through the lens of caregiving responsibilities. By drawing an analogy to John Rawls’s veil of ignorance, and borrowing from feminist and communitarian critiques of Rawls, the Article highlights the limits of the ignorance approach. The Article then proposes an alternative “information-shifting” approach currently utilized in the disability context as a better way for the law to regulate employers’ access to information.

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