Volume 68, Issue 4, 777-794
While big data offers society many potential benefits, it also comes with serious risks. This Article focuses on the concern that big data will lead to increased employment discrimination. It develops the novel argument that the Americans with Disabilities Act (“ADA”) should be amended in response to the proliferation of big data in order to protect individuals who might be categorized as likely to develop physical or mental impairments in the future.
Employers can obtain medical data about employees not only through the traditional means of medical examinations and inquiries, but also through the nontraditional mechanisms of social media, wellness programs, and data brokers. Information about workers’ habits, behaviors, or attributes that is derived from big data can be used to create profiles of undesirable employees. It can also be used to exclude healthy and qualified individuals whom employers regard as vulnerable to future medical problems. The ADA, which now protects only individuals with current or past disabilities and those who are perceived as having existing impairments, can no longer ignore the discrimination threats posed by predictive health data. This Article analyzes these risks and proposes a detailed statutory response to them.