BIG DATA AND THE AMERICANS WITH DISABILITIES ACT

PROFESSOR SHARONA HOFFMAN

CASE WESTERN RESERVE UNIVERSITY

HOW EMPLOYERS OBTAIN MEDICAL BIG DATA

• TRADITIONAL -MEDICAL EXAMINATIONS AND INQUIRIES

• SOCIAL MEDIA

•WELLNESS PROGRAMS

• DATA BROKERS

DATA DE-IDENTIFICATION

• RISK OF RE-IDENTIFICATION CANNOT BE COMPLETELY ELIMINATED

• DE-IDENTIFIED DATA ITSELF CAN ALLOW EMPLOYERS TO DETERMINE THAT CERTAIN ATTRIBUTES ARE UNDESIRABLE

DISEASE PREDICTION

• CAUSAL LINK BETWEEN BEHAVIORS OR TRAITS AND DISEASE VULNERABILITY

• BIOMARKERS

• DATA ALGORITHMS

•OTHER PREDICTORS – E.G. BICYCLE PURCHASES, VOTING, CREDIT SCORES

THE AMERICANS WITH DISABILITIES ACT

• DEFINITION OF “DISABILITY”

• PHYSICAL OR MENTAL IMPAIRMENT THAT SUBSTANTIALLY LIMITS ONE OR MORE MAJOR LIFE ACTIVITIES

• RECORD OF SUCH IMPAIRMENT

• BEING REGARDED AS HAVING IMPAIRMENT

RECOMMENDED ADA REVISIONS

• EXPAND “REGARDED AS” PROVISION TO PROTECT INDIVIDUALS PERCEIVED AS LIKELY TO DEVELOP PHYSICAL OR MENTAL IMPAIRMENT IN FUTURE

• CONSISTENT WITH GENETIC INFORMATION NONDISCRIMINATION ACT (GINA)

RECOMMENDED ADA REVISIONS

• EXCEPTIONS FOR RISK-TAKING BEHAVIORS (SMOKING, EXCESSIVE DRINKING)

• NO EXCEPTION FOR OBESITY

• DISCLOSE DATA MINING PRACTICES