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. Continue reading

New Blog Symposium! Applying the Americans with Disabilities Act and Genetic Information Nondiscrimination Act to the NFL Workplace

By Christopher R. Deubert

In recent years, there has been a growing amount of attention to different types of technologies (wearable and otherwise) that can measure various health- and performance-related metrics for athletes (see here, here, here, here, and here).  While no categorization is perfect, these technologies generally fall into eight categories: (1) player tracking, (2) heart rate, (3) sleep, (4) readiness, (5) body temperature, (6) force, (7) hydration, and (8) head impact sensors. Teams may use these technologies for evaluating and improving player performance, as well as for preventing or minimizing injury.

These new technologies are exciting, but they also raise concerns about how the data they generate might be used unfavorably towards players. For example, a team might discover that a player is no longer creating the same amount of force as he used to, which could threaten the player’s status with the team.

It was these types of concerns that led our team – Jessica L. Roberts, I. Glenn Cohen, Holly Fernandez Lynch, and me – to conduct an analysis of potential legal concerns related to these technologies, as well as other health and performance evaluations of NFL players, in our recent article, Evaluating NFL Player Health and Performance: Legal and Ethical Issues (165 U. Penn. L. Rev. 227, Jan. 2017).*  Specifically, we focused on the application of two federal employment antidiscrimination statutes: the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) to the NFL workplace. Continue reading