Employers must be extra cautious of age bias exposure

Employers need to be careful that their use of wearables for employees does not make them vulnerable to age discrimination complaints, experts say.

If an employer is using wearable technology to monitor health conditions such as blood pressure and passes over an older worker with consistently high blood pressure for high-stress, higher-reward projects, that employer could be opening the door to discrimination claims, said Jennifer Rubin, an employment lawyer and partner with Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C. with offices in New York City and San Diego. Likewise, it could also be problematic if an employer is designating particular categories of employees to be provided with wearables.

“Anytime you use the word ‘special,’ you could be accused of making that determination on a discriminatory basis,” she said.

Unintended bias could also be an issue, said Kraig Marini Baker, a partner in the Seattle office of Davis Wright Tremaine LLP. For example, an older worker using an assistive wearable technology like an exoskeleton could be perceived by others as unable to carry as much as an employee not using the technology.

Another issue could be if an employment decision was made based on wearable data that showed a worker’s performance had declined because a plaintiff’s lawyer may see an opportunity to sue if the company has not acted consistently with regard to all employees whose performance had decreased, he said.