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Big Data and the Americans with Disabilities Act

19 Pages Posted: 23 Sep 2016 Last revised: 28 Jun 2017

Sharona Hoffman

Case Western Reserve University School of Law

Date Written: 2017

Abstract

While big data offers society many potential benefits, it also comes with serious risks. This Essay 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 big data phenomenon in order to protect individuals who are perceived 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 non-traditional 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. The Essay analyzes these risks and propose a detailed statutory response to them.

Keywords: Social Media, Data Brokers, Wellness Programs, Disability Discrimination, Employment Discrimination, Americans with Disabilities Act, Big Data

JEL Classification: K32

Suggested Citation

Hoffman, Sharona, Big Data and the Americans with Disabilities Act (2017). 68 Hastings Law Journal 777 (2017); Case Legal Studies Research Paper No. 2016-33. Available at SSRN: https://ssrn.com/abstract=2841431

Sharona Hoffman (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-3860 (Phone)

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