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61 Jurimetrics 289 (2020-2021)
Issue 3

handle is hein.journals/juraba61 and id is 326 raw text is: THE FEMTECH PARADOX: HOW WORKPLACE MONITORING THREATENS WOMEN'S EQUITY Elizabeth A. Brown* ABSTRACT: As biometric monitoring becomes increasingly common in workplace wellness programs, there are three reasons to believe that women will suffer dispropor- tionately from the data collection associated with it. First, many forms of biometric mon- itoring are subject to gender bias, among other potential biases, because of assumptions inherent in the design and algorithms interpreting the collected data. Second, the expan- sion of femtech in particular creates a gender-imbalanced data source that may feed into existing workplace biases against women unless more effective safeguards emerge. Fi- nally, many femtech platforms encourage the kind of information sharing that may re- duce women's reasonable expectations of privacy, especially with regard to fertility data, thus increasing the risk of health data privacy invasion. This triple threat to female work- ers may be offset somewhat by the benefits of health data collection at work and may be remedied at least in part by both legislative and nonlegislative means. The current trend toward greater health data collection in the wake of COVID-19 should provoke a reex- amination of how employers collect and analyze women's health data to reduce the im- pact of these new gender bias drivers. CITATION: Elizabeth A. Brown, The Femtech Paradox: How Workplace Monitoring Threatens Women 's Equity, 61 JURIMETRICS J. 289-329 (2021). Should a woman's boss be able to tell whether she is pregnant from an app on her work-issued phone? Should women be required to provide their employ- ers with access to data about their fertility or symptoms of menopause, as part of wellness programs? To what extent should employers be able to determine whether female employees have terminated their pregnancies if the employees do not volunteer that information themselves? These are some of the questions raised by a largely unregulated yet increasingly common practice: including femtech in workplace wellness programs. *Associate Professor, Bentley University. The author thanks Marianne DelPo Kulow for her help in discussing early ideas for this Article, Sneha Durairaj, Debayan Sen, and Amanda Pine for their research assistance, and participants in both the 2020 ABLJ Scholarship Colloquium and Tech Law Colloquium for their invaluable feedback. SPRING 2021 289

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