Monday, November 17, 2014
Guest Blogger Assistant Professor Jessica L. Roberts: Healthism? The EEOC, Employer Wellness Programs, and Discrimination on the Basis of Health Status
Not too long ago, the Department of Labor championed employer wellness programs as vehicles for both promoting public health and cabining health-care spending. Yet judging from recent litigation, the Equal Employment Opportunity Commission (EEOC) feels less sanguine about the potential effects of these kinds of initiatives.
On October 27, 2014, the EEOC filed a complaint against Honeywell, Inc., alleging that the company violated the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act by requiring employees (and their spouses in the case of family coverage) to undergo biometric testing—i.e., measuring employees’ heights, weights, and waist circumferences and screening their blood pressure, cholesterol, and glucose levels—in conjunction with its employer-provided health benefit plan. The EEOC maintained that, despite Honeywell’s protestations to the contrary, failing to take these tests would incur significant penalties, thereby making participation in the wellness program not truly voluntary. It asked the Minnesota Federal District Court for a temporary restraining order and a preliminary injunction enjoining Honeywell from imposing penalties on employees and their spouses who opted out of testing. Just last week, on November 3, the judge denied the request.
As someone who thinks and writes about discrimination on the basis of health-status in both health insurance and in employment, I watched the Honeywell litigation with great interest. Some time ago I rechristened the word “healthism” to mean differentiation on the basis of health-status that creates a normative wrong. While I indicated that an antidiscrimination concept like healthism might break down in the context of private, for-profit health insurance—an industry that is by its very nature “discriminatory”—employment discrimination on the basis of health—like banning the hiring of tobacco users or of the obese—produces enough socially undesirable outcomes to warrant a federal statute. But what about employer-provided wellness programs like the ones at issue in Honeywell? In my limited discussion of employer-provided wellness programs, I conclude that current federal law—mainly the Health Insurance Portability and Accountability Act, the Affordable Care Act, and their associated regulations—expressly allows differentiation on the basis of health. But are these programs healthist? In other words, do they as the EEOC argued produce a normative wrong sufficient to warrant legal intervention? Moreover, is it healthist to simply request an individual’s health-related information, if the health insurer or the employer does not act on that information beyond the health plan’s participation benefit? For example, is it healthist for my employer just to ask to weigh me if I know my weight fluctuations will not affect my insurance or my employment? I’ve acknowledged that inquiries about a person’s race, sex, age, or religion may constitute independent antidiscrimination harms. What about health-related inquiries? These questions present new and exciting challenges for health law scholars. I am delighted to be expanding my work on healthism in collaboration with Elizabeth Weeks Leonard. Stay tuned as we attempt to define this slippery concept in our future work!