Forthcoming in Glenn Cohen, Allison Hoffman and William Sage (eds.), Big Data, Health Law, and Bioethics (Cambridge University Press 2017)
13 Pages Posted: 14 Dec 2016
Date Written: December 12, 2016
While big data holds great promise to improve the human condition, it also creates new and previously unimaginable opportunities for discrimination. Employers, financial institutions, marketers, educational institutions, and others can now easily obtain a wealth of big data about individuals’ health status and use it to make adverse decisions relating to data subjects.
The Americans with Disabilities Act (ADA) is a federal law that prohibits employers and other public and private entities from discriminating against individuals because of their disabilities. This chapter argues that in the era of big data, the ADA does not go far enough. While the ADA protects individuals who have existing disabilities, records of past disabilities, or are regarded as having mental or physical impairments, it does not reach people who are currently healthy but are perceived as being at high risk of becoming sick in the future. This is a gap that should not be ignored at a time when decision-makers have many newly-available data tools that enable them to make predictions about medical problems that individuals will face in later years.
The chapter recommends that the ADA be amended to expand its anti-discrimination mandate. Specifically, the statute should 1) prohibit discrimination based on predictions of future physical or mental impairments and 2) require covered entities to disclose in writing their use of big data or other non-traditional means to obtain health-related information.
Keywords: Social Media, Data Brokers, Wellness Programs, Open Data, Disability Discrimination, Privacy, Data Mining, Employment Discrimination, Lending Discrimination, Americans with Disabilities Act, Big Data
JEL Classification: K32
Suggested Citation: Suggested Citation
Hoffman, Sharona, Big Data's New Discrimination Threats: Amending the Americans with Disabilities Act to Cover Discrimination Based on Data-Driven Predictions of Future Disease (December 12, 2016). Forthcoming in Glenn Cohen, Allison Hoffman and William Sage (eds.), Big Data, Health Law, and Bioethics (Cambridge University Press 2017) ; Case Legal Studies Research Paper No. 2016-38. Available at SSRN: https://ssrn.com/abstract=2884317