The Americans with Disabilities Act and Discrimination Based on Predictive Health Data

This post is part of our Blog Symposium “Applying the Americans with Disabilities Act and Genetic Information Nondiscrimination Act to the NFL Workplace.” Background on the symposium and links to other blog posts are here

By Sharona Hoffman

The excellent article, “Evaluating NFL Player Health and Performance:  Legal and Ethical Issues,” argues that some of the existing assessments of NFL players appear to violate the Americans with Disabilities Act (ADA).  The authors call for revisions to the ADA to clarify the statute’s applicability to professional football and the scope of permitted medical examinations under the ADA.

I would like to take the argument a step further and urge that the ADA be extended to cover employer conduct that is now outside the statutory scope but is highly relevant to athletes’ employment prospects.  Specifically, the ADA should cover discrimination based on predictions of future physical and mental impairments.

The ADA prohibits employers from engaging in disability-based discrimination.  The term “disability” is currently defined as follows:

  1. a physical or mental impairment that substantially limits one or more major life activities of such individual;
  2. a record of such an impairment; or
  3. being regarded as having such an impairment.

Although this definition is quite broad, it does not reach individuals who are presently healthy but are subject to adverse action because they are predicted to develop impairments in the future.  In light of contemporary data collection and analysis abilities, this constitutes a significant statutory deficiency that could hurt many employees in general and athletes in particular.

As Professor Roberts et al. detail, the evaluations to which NFL players are subject “range from athletic drills and traditional medical examinations to cutting-edge wearable technologies.”  Players participate in athletic drills at the Combine and leading up to the NFL draft.  Clubs also use technologies that measure heart rate, sleep, readiness, body temperature, force, hydration, head impact and more.  Tiny GPS devices collect data about players’ agility, force, and acceleration, and wearable sensors collect data about individuals’ position, speed, and distance.  Other emerging technologies will be able to track a plethora of additional data.

While this information is used largely to prevent injuries and design more effective practices, it can also identify players who are slower, weaker, and vulnerable to injuries.  Thus, it is potentially career-ending.

Athletes who are identified as having existing impairments will be protected by the ADA. The statute’s “regarded as” provision covers even workers who have mental and physical impairments that are not substantially limiting and thus not severe enough to be considered actual disabilities, so long as the problems are not “transitory and minor.” Transitory impairments are defined as those “with an actual or expected duration of 6 months or less,” such as a broken leg or influenza. In addition, the law covers individuals who are perfectly healthy and have no actual impairments but whom employers incorrectly perceive as impaired.

But what about individuals who are fully able-bodied at present but predicted to develop impairments in the future?  Assume that an NFL club analyzes data and determines that in the future a player is likely to develop a troublesome back or shoulder problem or ailments due to inadequate sleep and consequently terminates his contract.  This unfortunate player would fall outside the scope of the ADA.  The statute does not ban discrimination against individuals who have never had disabilities and are not perceived as having existing impairments but are deemed to be at risk of being unhealthy at a later time.

To remedy this shortcoming, Congress should modify the language of the ADA’s “regarded as” provision.   The law should be extended to include individuals who are subjected to discrimination because they are thought to be likely to develop physical or mental impairments in the future.  As in other “regarded as” cases, a plaintiff should not be required to prove that the employer believed he would develop a condition that rises to the level of a disability (an impairment that substantially limits a major life activity).  Instead, plaintiffs should have to prove only that the employer was worried about a future non-transitory physical or mental impairment.

This approach would be consistent with that of the Genetic Information Nondiscrimination Act (GINA).  As presently written, GINA prohibits employers from discriminating based on any genetic information regardless of the individual’s health status.  Thus, an employer that somehow learns a worker has a genetic abnormality that makes her vulnerable to a particular disease may not use this information for purposes of an adverse employment decision.  It makes little sense for the ADA to adhere to a different standard and allow employers to discriminate based on evidence indicating susceptibility to impairments later in life.

When the ADA was enacted in 1990, contemporary data collection and analysis capabilities were unimaginable.  My proposed statutory revision would be a measured and appropriate response to the big data era and to the real threat of discrimination based on data-driven predictions of future health problems.

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This post is based in part on a forthcoming article Big Data and the Americans with Disabilities Act, Hastings Law Journal (2017) and a book chapter Big Data’s New Discrimination Threats:  Amending the Americans with Disabilities Act to Cover Discrimination Based on Data-Driven Predictions of Future Disease, in Big Data, Health Law, and Bioethics (forthcoming from Cambridge University Press).  Much of Professor Hoffman’s research focuses on health information technology, and she is also the author of Electronic Health Records and Medical Big Data:  Law and Policy (Cambridge University Press 2016).  Her website is http://sharonahoffman.com/.

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