EEOC Advises Using Wearables With Employment Discrimination Laws in Mind

The U.S. Equal Employment Opportunity Commission is warning employers that wearable technologies could run afoul of employment discrimination laws, since the laws apply to the collection and use of information from wearables.

A fact sheet from the EEOC addresses use of wearable technologies in workplaces. Wearable technologies can be used to track physical factors, such as an employee’s location, heart rate, electrical brain activity, or fatigue.

An employer’s improper use of information that wearables collect may raise concerns under other federal anti-discrimination laws. The EEOC is cautioning employers to be careful about using data collected by wearable devices to determine sex, age, genetic information, disability, or race to take an adverse action against an employee.

Employers must comply with the nondiscrimination requirements of all the Equal Employment Opportunity laws. The laws prohibit employment discrimination based on a protected characteristic: race, color, religion, sex, national origin, age, disability or genetic information.

“If an employer uses wearable-generated information to make employment decisions that have an adverse effect on employees because of a protected basis, they could violate these EEO laws,” the fact sheet states.

According to the fact sheet, an employer could violate the EEO laws’ nondiscrimination requirements by using wearable-generated information in the following ways:

• Using heart rate, fatigue level, or temperature information to infer that an employee is pregnant, and then firing the employee or putting her on unpaid leave against her will.
• Relying on data from wearable technology that produces less accurate results for individuals with dark skin (race or color) to make adverse employment decisions.
• Firing an employee based on an elevated heart rate when the elevated heart rate results from a heart condition (disability).
• Tracking an employee during a lunch break when the employee is taking their parent to a dialysis center, and then inquiring or conducting research about the purpose for the employee’s visit to the center, in a way that elicits genetic information, which includes family medical history.
• Analyzing heart rate variability and skin temperature to infer or predict menopause, and then refusing to promote the employee because of sex, age or disability.

Additionally, employer-mandated wearables, such as watches, rings, glasses, or helmets that collect information about a worker’s health and biometric data may be conducting a “medical examination” as defined by the Americans with Disabilities Act. If the wearables require employees to provide health information, the employer may be making “disability-related inquiries.” The ADA limits the use of medical examinations or disability-related inquiries by employers and also requires employers to safeguard medical records, according to the fact sheet.