Wearable Tech in the Workplace: Efficiency Booster or Discrimination Liability?

The U.S. Equal Employment Opportunity Commission (EEOC) has published new guidance on the use of wearable technology to monitor employees in the workplace. Like many nascent technologies, the growing popularity of wearable devices presents new opportunities and liabilities for employers looking to collect on-the-job data. 

This rapidly evolving technology — which ranges from the collection of simple location data to much more sensitive biometric and medical data — could open unsuspecting employers to discrimination and noncompliance issues if not deployed appropriately.

In their recently published fact sheet, the EEOC cautions employers against any uses that could violate the Americans with Disabilities Act (ADA) and/or Equal Employment Opportunity (EEO) laws. Some of these considerations include:

• The collection of information, like blood pressure or eye-tracking monitors, that could be considered “medical examinations” under the ADA;
• Employers could be making “disability-related inquiries” if they ask employees to disclose a disability or the prescriptions they use in conjunction with a company-issued wearable device;
• Whether the use of the technology is required by federal, safety-related laws or regulations, or for certain positions affecting public safety (i.e., police officers and firefighters); and
• Whether the employees are part of a voluntary health program “reasonably designed” to promote health and/or prevent disease.

The EEOC notes that if an employer determines using data collection technology meets the standards outlined by EEO and ADA rules, certain data sets would need to be treated differently than traditional personnel information. Data that qualifies as medical or disability-related information must be kept in a confidential medical file, separate from general personnel records.

The ultimate use of collected data must also be considered to comply with EEO nondiscrimination requirements. For example, an employer who used biometric data as the basis to terminate or otherwise discipline an employee with protected characteristics (i.e., race, color, religion, sex or gender, national origin, age, disability or genetic information) would be doing so in violation of EEO laws.

Employers must be careful to equally deploy monitoring technology to avoid the perception that it is being used to monitor only protected groups or individuals or for retaliatory purposes. For example, an employer that used biometric tracking technology to monitor a pregnant employee’s vital signs before firing or placing them on unpaid leave would be creating the basis for a discrimination case.

In the same way, deploying these devices to groups based on national origin would violate nondiscrimination requirements under EEO laws.

Finally, employers moving forward with deploying wearable devices must make reasonable accommodations for employees under Title VII, related to religious belief, practice or observance, as well as the ADA or the Pregnant Workers Fairness Act based on pregnancy or disability.

Employers considering the use of this technology should consult legal counsel before moving forward.

Eyragon Eidam, Managing Editor, CalChamber

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