In light of the increased use of wearable technologies (wearables) in the workplace, the Equal Employment Opportunity Commission (EEOC) recently issued guidance to remind employers that employment discrimination laws apply to the collection and use of information from wearables. While wearables can offer several benefits to employers and employees, the EEOC warns that such wearables, even if well-intentioned, can pose EEO compliance issues with respect to certain data collected and the improper use of such data. Read on for highlights of the guidance to learn how wearables can implicate federal anti-discrimination laws.
Wearable Technologies
The EEOC refers to wearables as digital devices worn on the body that are embedded with sensors to track bodily movements, collect biometric information, and/or track location. Some examples of wearables identified in the guidance, include:
- Smart watches or rings that track activities or monitor physical or mental conditions;
- Environmental or proximity sensors that warn wearers of nearby hazards;
- Smart helmets or glasses that measure brain activity or detect emotions;
- Exoskeletons or other aids that provide physical support or reduce fatigue; and
- Global Positioning System devices that track location.
Collection of Information
The guidance reminds employers that, with limited exceptions, the Americans with Disabilities Act (ADA) prohibits medical examinations and disability-related inquiries unless it is job-related and consistent with business necessity. As it pertains to wearables, the EEOC warns that certain types of information collected can constitute a medical examination or a disability-related inquiry. The guidance sets forth the following explanations of when compliance issues may arise:
- Medical Examinations: Employers may be conducting medical examinations if the wearables collect information about an employee’s physical or mental conditions (e.g., blood pressure monitors or eye trackers), or the information is collected to do diagnostic testing (e.g., electroencephalogram or “EEG” testing).
- Disability-Related Inquiries: Employers may be making disability-related inquiries if they direct employees to provide health information in connection with using wearables (e.g., information on prescription drug use or disability).
If a wearable collects medical or disability-related data, the guidance reminds employers that the data must be maintained in separate medical files and treated as confidential medical information.
Use of Information
The EEOC warns that improper use of collected information could result in unlawful discrimination. The guidance provides examples of improper data use, including the following:
- Pregnancy: Using information collected to infer an employee is pregnant and, as a result, terminating or placing the employee on unpaid leave.
- Race or color: Relying on technologies that produce less accurate results for individuals with darker skin to make adverse employment decisions.
- Disability: Terminating an employee based on an elevated heart rate that results from a heart condition.
- Genetic Information: Tracking the location of an employee who takes their parent to a dialysis center and then inquiring or researching the purpose for the visit in a way that elicits genetic information about the employee’s family medical history.
- Sex, Age, and/or Disability: Using information collected to infer menopause and, as a result, refusing to promote the employee because of sex, age, and/or disability.
The guidance also warns against the selective use of wearables to monitor some employees based on a protected characteristic or in retaliation for an employee engaging in protected activity. Employers also risk violating EEO laws by using information for employment decisions that disproportionately impact individuals on the basis of a protected characteristic.
Reasonable Accommodations
The guidance notes that employers may need to make exceptions or provide alternatives to a wearables policy as a reasonable accommodation under Title VII (religious beliefs or practices), the ADA (disability), or the Pregnant Workers Fairness Act (pregnancy, childbirth, or related medical conditions), even if the employer complies with the ADA’s limitations.
Employer Takeaways
As wearables become increasingly common in the workplace, employers should ensure that such use complies with all applicable federal, state, and local laws. When using wearables in the workplace, employers should consider the following:
- Review policies on wearables to ensure the use and collection of data complies with the ADA;
- Safeguard the information collected with secure data storage practices;
- Conduct regular audits of wearable technologies for potential bias;
- Never rely solely on wearable data to make employment decisions; and
Implement a process for employees to request reasonable accommodations.
If you have any questions related to the EEOC’s Guidance or need assistance reviewing policies on wearable technologies, please reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100 or 619.292.0515.