Progressing Toward Regression

Predicting the new normal in the context of current discrimination law.*

In a frightening but sobering article titled We’re not going back to normal (, the MIT Technology Review this week warned that “[s]ocial distancing is here to stay for much more than a few weeks. It will upend our way of life, in some ways forever.” The prediction was that social distancing, while a necessary evil in the present COVID-19 pandemic, will become a permanent fixture in the American socioeconomic landscape, such that businesses will begin to “legally” discriminate against their customers and employees.

After referencing the human tracking methodologies employed by Israel and Singapore, the article continues:

We don’t know exactly what this new future looks like, of course. But one can imagine a world in which, to get on a flight, perhaps you’ll have to be signed up to a service that tracks your movements via your phone. The airline wouldn’t be able to see where you’d gone, but it would get an alert if you’d been close to known infected people or disease hot spots. There’d be similar requirements at the entrance to large venues, government buildings, or public transport hubs. There would be temperature scanners everywhere, and your workplace might demand you wear a monitor that tracks your temperature or other vital signs. Where nightclubs ask for proof of age, in future they might ask for proof of immunity—an identity card or some kind of digital verification via your phone, showing you’ve already recovered from or been vaccinated against the latest virus strains.

As usual, however, the true cost will be borne by the poorest and weakest. People with less access to health care, or who live in more disease-prone areas, will now also be more frequently shut out of places and opportunities open to everyone else. Gig workers—from drivers to plumbers to freelance yoga instructors—will see their jobs become even more precarious. Immigrants, refugees, the undocumented, and ex-convicts will face yet another obstacle to gaining a foothold in society.

Moreover, unless there are strict rules on how someone’s risk for disease is assessed, governments or companies could choose any criteria—you’re high-risk if you earn less than $50,000 a year, are in a family of more than six people, and live in certain parts of the country, for example. That creates scope for algorithmic bias and hidden discrimination, as happened last year with an algorithm used by US health insurers that turned out to inadvertently favor white people.

This all sounds perfectly plausible, if not Orwellian, but there is at least one fly in the ointment of this prophecy: The Americans with Disabilities Act (ADA). The ADA prohibits businesses not only from discriminating against persons with disabilities, but also against persons who are “regarded as” having a disability. For instance, in the employment context it is illegal for an employer to discriminate against an employee the employer believes to have a disability — even if the employee does not in fact have a disability. For the purposes of the ADA, a disability is defined as a physical or mental impairment that substantially limits one or more major life activity. An exception exists for conditions that are both transient (defined as six months or less) and minor, but most courts have found that to be an objective determination (rather than the employer’s own subjective opinion). Although the flu has been found to be a transient and minor condition; see, e.g., Lewis v. Florida Default Law Group, 2011 WL 4527456, at *5-7 (M.D. Fla. 2011) (H1N1 virus); it is questionable whether a COVID-19 infection (or perceived infection) would be viewed by courts as objectively transient and minor, especially given the current climate.

Businesses are also prohibited from discriminating against their patrons on the basis of an actual or perceived disability. This is known as discrimination in “places of public accommodation.” However, there is an express exception in the ADA that permits businesses to deny entry or service to an individual who poses a direct threat to the health or safety of others, so long as that threat cannot be mitigated by making “appropriate modifications in the public accommodation’s policies or procedures.” See 28 CFR § 36.208; 36.302. The same defense exists for employers, who may, for instance, refuse to hire an individual who poses a direct threat to the health or safety of others in the workplace. See 29 CFR § 1630.15. However, the employer must base this determination in actual and current scientific or medical evidence, not mere subjective belief. And the Equal Employment Opportunity Commission’s (EEOC) regulations define a direct threat as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”

All of this being said, there is of course always the possibility that Congress could pass amendments to the ADA that carve out exceptions for COVID-19 infections, giving greater latitude to employers and places of public accommodation to exclude individuals infected with this virus. One way this could be accomplished is by expressly excluding COVID-19 infections from the definition of disability. To clarify, I am not aware of any such legislation currently under consideration by Congress. I am simply pointing out that it is not unfathomable.

Even if such legislation were enacted, however, it would not preclude lawsuits on the basis of disparate impact discrimination claims. Disparate impact discrimination occurs when a business, government agency, landlord, etc. implements a policy that is neutral (nondiscriminatory) on its face, but has the effect of giving preferential treatment to one class of persons over another. The MIT article presents the examples of the government and companies screening for COVID-19 infections by labeling individuals “high risk” if they earn less than $50,000, have a large family size, or live in certain geographic area (presumably urban areas with high population densities). As such policies would likely have a disproportionately adverse effect on minorities, plaintiffs could very well prevail on claims of disparate impact discrimination.

To be sure, the only thing certain about our future is that nothing is certain. Be vigilant. Be careful. Be kind.

*The contents of this post reflect the individual opinions of the author alone, and do not represent the opinions of the CT Freedom Alliance or any organization or person. Nothing contained herein should be construed as legal advice.

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