The sci-fi film Minority Report envisions the year 2054, when the U.S. government uses predictive foreknowledge of “precogs” to apprehend criminals before their crimes are ever committed, thereby reducing future harm. More than 15 years after the popular film was made, the Seventh Circuit’s decision in Shell v. Burlington Northern Santa Fe Railway Company arrives at a similar result. The Shell court held that employers do not violate the ADA when they use current predictors of future disabilities, such as obesity, to reject candidates for employment, thereby reducing future costs. This ground-breaking opinion opens the door for employer use of predictive tools such as genetic testing and AI algorithms to discern which applicants or employees are most likely to develop future (costly) disabilities, and exclude them from the workforce before disabilities arise, and before legally protected status attaches. In other words, the opinion allows employers to exclude someone based on a status of “likely to develop a future disability,” without violating the ADA, because the individual does not currently have the status of “disabled.”
Continue Reading The future is now: Employer use of present-day medical information to predict future disabilities does not violate the ADA