When it comes to female employees and workplace wellness programs, Liz Brown is adamant: “What seems like a benefit can actually be a source of bias.”  

In her latest research — for which Brown was awarded the Loevinger Prize by Jurimetrics, the American Bar Association’s journal of law and science — the associate professor of Law takes a closer look at “femtech,” an umbrella term for the growing range of mobile apps, wearable technology and other digital innovations designed to meet women’s unique biological needs.  

Virtually unheard of a decade ago, femtech is a growing — and lucrative — industry: Valued at $22 billion in 2020, it’s expected to reach $50 billion by 2025. Although Brown acknowledges these tools “offer potentially limitless benefits to women and their families,” she warns that “these benefits have a cost.” When included as part of corporate wellness programs, she says, femtech could become a “new engine of sexism,” providing a “gender-imbalanced data source that may feed into existing workplace biases against women.”

Brown’s prior research has explored the increasing use of biometric monitoring tools in the business world. “Workplace wellness programs are popular in part because of the skyrocketing cost of health insurance borne by employers,” she explains, as companies believe they can reduce their long-term costs by encouraging employees to adopt healthy lifestyles.  

Biometric monitoring tools — in particular, smartwatches linked to mobile-tracking apps — are often the cornerstone of these programs and enable employees to monitor a wide range of personal health data, such as blood pressure, heart rate, weight loss or gain, exercise, sleep and mental health. Now, thanks to femtech, female employees can also track information specific to their reproductive health, including menstruation, fertility and menopause.  

What most workers don’t realize, Brown says, is that by participating in these programs, they’re allowing employers access to deeply personal and potentially sensitive information. Many assume their privacy is protected by the 1996 Health Insurance Portability and Accountability Act (HIPAA); however, as third-party providers, the companies that collect, analyze and aggregate employee health data are not considered covered entities.   

The danger, Brown cautions, is that access to employee health data could result in workplace discrimination. Companies could use this information to “identify workers with certain expensive health conditions” and subsequently justify reducing or eliminating their job responsibilities. The stakes are even higher for women, she says, as the sexism they encounter in the workplace is often rooted in the very biological differences femtech tools monitor.  

“Employers who consciously or unconsciously believe in certain stereotypes about women — that women who are menstruating are distracted, that women who are trying to get pregnant are poor candidates for investment and promotion, that mothers are less committed to their work than fathers — could use this data to act on those prejudices,” Brown explains.  

In addition, many femtech tools offer work-related advice. One popular menstrual tracking app, for example, lets a user know the specific times during her cycle when she should be “brainstorming and researching” instead of “giving a presentation.” If her employers have access to this data, Brown says, they could “stop her from giving an important presentation that could advance her career.” What’s more, by categorizing this information as “medical advice,” the company could shield itself against a potential gender discrimination claim by “arguing that its decision is based not on gender but on science.”   

Other femtech tools promote a “sharing culture,” offering specialized social media platforms where users can connect with other women who may be similarly struggling with infertility, dealing with a miscarriage or contemplating terminating a pregnancy. Though such forums can provide invaluable emotional support, they also create a significant data protection loophole; an employee suing her company for invasion of privacy, for example, may find her case undermined if it emerges that she regularly posted about her health issues within the app’s user community. 

So how can female employees ensure their biological data doesn’t become the basis of business decisions? Brown advocates a two-pronged approach: increasing public awareness about potential data misuse and enacting new legislation to protect health data from widespread dissemination.  

User awareness is particularly important, she says, noting that menstrual tracking apps are the fourth most popular health app among young adults and the second most popular among adolescents. To help younger femtech users make more informed decisions, she supports the creation and use of a standardized label that would “ensure that each app and tool discloses, in simple and clear terms,” the specific information being collected and how and with whom that data is shared. 

Brown also endorses enacting federal legislation to provide data protection explicitly for employees. She points to the Protecting Personal Health Data Act, proposed in 2019 by Senators Amy Klobuchar, D-Minn., and Lisa Murkowski, R-Alaska, which would allow consumers to review, change and delete information collected about their health. Notably, the act calls for the creation of a National Task Force on Health Data Protection, charged with evaluating and regulating “consumer and employee health data” [emphasis added]. As of today, the Act has not yet been passed by the Senate. 

Whether via federal task force or alternative legislation, Brown says, workplace wellness programs should be regulated to ensure more flexibility and transparency. Instead of an all-or-nothing approach, employees — regardless of gender — should be given the option to choose which elements of those programs they participate in “without fearing a subsequent loss of health insurance or employment.”  

In a climate where COVID-19 has prioritized conversations about employee health, and wellness programs featuring femtech are being marketed as essential mechanisms for retaining female talent, it’s crucial for women to consider how biometric monitoring devices could be used against them. “These are urgent concerns for women at work,” Brown says. “Rather than empowering women, as they promise, these technological advances could be used to further gender inequality.”