As governments the world over seek ways to jumpstart economic activity, one proposal is a so-called “immunity passport” that would allow certain people who test positive for COVID-19 antibodies to return to work before others. We at the ACLU have serious concerns about the adoption of any such proposal, because of its potential to harm public health, incentivize economically-vulnerable people to risk their health by contracting COVID-19, exacerbate racial and economic disparities, and lead to a new health surveillance infrastructure that endangers privacy rights.

An immunity passport system is fundamentally different from a regime whereby employers routinely test workers for COVID-19 or screen for symptoms, to ensure that no one with active infection is entering a workplace. In the latter system, only contagious workers are prevented from going to work and only for the period of time in which they are contagious. Every worker is subject to the same screening rules. But an immunity passport system would divide workers into two classes — the immune and the non-immune — and the latter might never be eligible for a given job short of contracting and surviving COVID-19 if an immune worker is available to take the slot.

To start, the science does not yet justify the use of immunity passports or certificates. The World Health Organization has stated that we do not yet know the level of protection that COVID-19 antibodies (which show that someone was previously infected with the virus) provide against reinfection, nor do we know how long such protection might last. There are also ongoing questions about the accuracy of various COVID-19 antibody tests, with more than a dozen such tests currently on the market producing inaccurate or inconsistent results. Even small error rates could make reliance on antibody tests unworkable, or dangerous for those workers who get a false positive for antibodies. Given the lack of scientific support for reliable immunity determinations, no significant policy decisions should currently be made on the basis of presumed immunity.   

But even if we eventually were to gain confidence that individuals with COVID-19 antibodies may have immunity from reinfection for some period of time, there are serious civil liberties and civil rights harms from making workplace decisions on that basis. The widespread use of immunity passports by employers could create perverse incentives to contract COVID-19 for people who are the most economically insecure, as happened with a past outbreak of yellow fever in the United States. These incentives will be especially hard to counteract if immune workers are given preferential treatment in hiring or higher wages. The following are a few additional considerations that policymakers and private actors should consider.

Exacerbating Racial Disparities and Disproportionately Harming People with Disabilities

In the U.S., immunity passports could exacerbate existing racial disparities, harming workers of color and people with disabilities in particular. As COVID-19 data continues to be published, we are seeing stark racial disparities in who is being hospitalized or dying from COVID-19. New York City, for example, has had a disproportionate number of Black and Latinx people die from COVID-19. In Georgia, over 80 percent of those hospitalized have been Black. 

The industries most likely to adopt any immunity system will be those deemed essential and those in which employees cannot work from home — including health care, caregiving, food production and food service, emergency services, sanitation, transportation, and delivery — the very industries that employ many immigrants, workers of color, and women, often for low wages and without paid sick leave. One study showed that Black and Latinx workers are overrepresented in jobs that cannot be done remotely. Workers of color, in particular women of color, and low-income workers are therefore disproportionately likely to be affected by a workplace immunity passport policy than white-collar workers who have continued to earn an income through remote work.

Communities of color, including Black, Latinx, and Indigenous communities, already face health disparities due to socioeconomic barriers, including inequity in access to testing, treatment, and high-quality care. They are therefore more likely to have higher rates of the health conditions that increase the risks of COVID-19. As a result, it is foreseeable, maybe even inevitable, that an immunity passport system, with all its attendant pressures on workers to acquire immunity, would result in disproportionately more illness and death among people of color in the U.S. It would disproportionately harm all workers who have disabilities that put them at greater risk of severe illness or death from COVID-19.

There is also a risk that employers will prefer to hire workers with immunity than devote resources to across-the-board safety precautions that protect all workers and the people they come into contact with. Even if the accuracy of antibody tests improves, any workers who falsely test positive would remain at risk, as might those with lesser or waning immunity. Since so much remains unknown about the virus, the use of immunity passports could lull a workplace into an unjustified sense of security that it need not implement appropriate protocols against transmission of COVID-19.

Privacy Harms from a New Health Surveillance Infrastructure

Any immunity passport system endangers privacy rights by creating a new surveillance infrastructure to collect health data. It is one thing for an employee to voluntarily disclose their COVID-19 status to an employer on a one-off basis. But it is another for that information to be collected and retained, either by the government or by private companies offering immunity certifications, depending on how any immunity passport system in the U.S. is implemented. The ACLU has warned against the use of location-tracking technologies that will enshrine ever-greater data collection and surveillance without commensurate public health efficacy or benefits. It is unclear whether a persistent health surveillance infrastructure could protect anonymity and health privacy while also ensuring that uploaded testing data is authentic.

The existing legal framework may not be sufficient to prevent this information from being shared, especially if it is held by private entities. Many members of marginalized communities, including immigrant communities, might have reason to fear that their health status information will be used for law enforcement or immigration purposes, or to affect government benefits or health insurance. Once an immunity surveillance infrastructure is created for one purpose, there may be mission creep and moves to expand it into other contexts — such as by conditioning certain travel or access to housing on COVID-19 immunity. As a result, immunity status may be stored with other personal details, such as travel, employment, or housing information, heightening the intrusiveness of an immunity passport system. 

As tempting as immunity passports may be for policymakers who want a quick fix to restart economic activity in the face of widespread suffering from the COVID-19 pandemic, they present both public health and civil rights concerns that cannot be overlooked. Immunity passports incentivize vulnerable people to contract the disease, and raise the prospect of another hierarchical system, separating us into two categories — those with COVID-19 immunity, who are given preferential access to employment, housing, or public accommodations — and those without. This division would likely worsen existing racial, disability, and economic disparities in America and lead people struggling to afford basic necessities to deliberately risk their health.

Until there is a reliable, affordable, and widely accessible treatment or vaccine for COVID-19, employers must maintain best practices to protect workers and reduce COVID-19 transmission in workplaces. Instead of expending resources on the development of immunity passports, policymakers should focus on the implementation of widespread, free, and quick testing for COVID-19, without creating a new privacy-invasive data infrastructure that threatens everyone’s rights. There are better ways to both advance public health and protect individual rights that we should focus on in order to emerge from this crisis.

Esha Bhandari, Senior Staff Attorney, ACLU Speech, Privacy, and Technology Project,
& ReNika Moore, Director, Racial Justice Program, ACLU

Since the onset of the COVID-19 pandemic, protests have erupted across the country. Some are related to the virus: Protestors in Ohio and Michigan took to the streets and state capitols to call for an end to their governors’ stay-at-home orders. Others are calling out an ongoing injustice: the killing, often at the hands of the state, of Black Americans. Now, the rights of participants in protests across the spectrum could be at stake unless the Supreme Court weighs in on an important decision.

In this episode of At Liberty, we speak with DeRay McKesson, an activist at the center of an important ACLU case that threatens our right to protest. In 2014, DeRay protested the killing of Mike Brown by police in Ferguson, and he’s been fighting on the front lines of the Black Lives Matter movement ever since. In 2016, he was arrested after another protester (we don’t know who) threw something (we don’t know what), injuring a police officer (whose name we don’t know) in Baton Rouge, Louisiana. If this case is allowed to move forward, it could mean the end of taking to the streets to stand up for our rights. We’ve asked the Supreme Court to stop this dangerous lawsuit in its tracks.

DeRay discusses his experience as the plaintiff in the case, and his shock at how easily the government constructed its case against him in spite of a lack of concrete information about what happened that day in Baton Rouge. “If these things continue, the cost of being a protester will be so high that I can imagine it will lead to people choosing not to take part [in protest],” DeRay tells us of the high stakes of the case.

He also shares his thoughts on how organizing and protest will continue, and even thrive, in the age of COVID-19. Though taking to the streets isn’t an option for many right now as we try to stay safe and healthy, DeRay is hopeful: “Online communities will be stronger than they’ve ever been, campaigns to call and email will continue to be strong. I think that we will redefine what it means to be in community … I’m hopeful because I see people organizing in new and interesting ways every day.

You can listen to the episode here.

By the time a student graduates from college — particularly if they are a woman, LGBTQ, a person of color, or have a disability — the odds are high that they have experienced sexual harassment and assault. Over a quarter of women endure sexual assault during their undergraduate education, and more than half face harassment between 7^th-12^th grade. The experience of assault or harassment does not end with the incident, particularly for students who may have to see their harasser or assailant in class every day. Student survivors often develop anxiety and depression, and struggle to concentrate, which can result in poorer grades and skipping or dropping out of school. A single incident can derail a student’s life. Those students are mostly women.

The DeVos standard redefines what constitutes sexual harassment and assault in disturbing ways. It excuses schools from investigating reports of harassment and assault that take place off campus or schoolgrounds, like at unofficial frat houses, at an apartment on the edge of the campus, or during a school’s own study abroad program. This means that a school would not be obligated to help a middle school student harassed by another student on their way home from school. It means that a university can ignore a report of assault that occurred in off-campus housing — where the majority of college students live. Many commonplace scenarios like these would no longer require an adequate response.

The DeVos standard also allows colleges to ignore reports of assault or harassment unless they are made to the “right” official. Not even the biggest sexual abuse scandal in sports history — USA Gymnastics doctor Larry Nassar’s abuse of hundreds of gymnasts, including Michigan State students — would meet this standard, because many of the students reported the abuse to their athletic coaches, not the university’s designated Title IX coordinator. Let that sink in.

For 25 years, the federal government has defined sexual harassment as “severe, pervasive, or objectively offensive” conduct based on sex. ED is now redefining harassment as “severe, pervasive, and objectively offensive” conduct. The word swap makes all the difference. If the DeVos standard goes into effect, that middle schooler harassed on their way home from school every day could be deemed the victim of pervasive harassment, but the conduct will not trigger any responsibility to respond if it does not meet the additional thresholds of severity and objective offensiveness. Even worse, the new policy requires schools to dismiss any Title IX complaint that does not meet this heightened standard. And even where an incident plainly meets the new definition, the rule holds schools accountable only if they are “deliberately indifferent” to sex discrimination.

The impact of the DeVos standard would be devastating for survivors. Already, incidents of sexual harassment and assault are severely underreported. ED itself estimates 32 percent fewer investigations into sexual harassment complaints in institutions of higher education if the DeVos standard is adopted. Millions of students around the country would be made even more vulnerable to abuse — especially students who are women, LGBTQ, people of color, or have a disability.

Perhaps most egregiously, these provisions erect a double standard, taking sexual discrimination less seriously than other forms of discrimination that are equally prohibited by parallel federal laws that have long been interpreted consistently with each other. ED doesn’t impose such a demanding threshold for complaints of harassment based on race, national origin, or disability. In creating a higher threshold for only sex-based discrimination, DeVos has expressed an inherent skepticism for such claims, implying that students who report sexual assault or harassment should not be treated equally to students complaining of assaults or harassment based on race, national origin, or disability. The DeVos double standard will prevent many students from reporting abuse, and will let schools off the hook too easily when they do. There’s no basis in this country’s civil rights laws for treating sex discrimination differently from discrimination on the basis of race, national origin, and disability.

The ACLU is committed both to ending sexual harassment and assault on campus, and to ensuring fair process for complainants and respondents alike. This lawsuit targets those provisions of the rule that reduce the responsibility of schools to take sexual harassment seriously, and that treat sexual harassment as a second-class problem.

Sexual harassment and assault have no place in our schools. Federal law imposes obligations on schools to make sure that’s the case. Students shouldn’t have to jump through hoops just to report abuse, and schools should not be allowed to ignore claims of discrimination on the basis of sex when they would have to respond to claims of discrimination on other protected grounds. Students have the right to learn without suffering the effects of sex-based discrimination, and today the ACLU is taking DeVos to court to defend that right.

Jennesa Calvo-Friedman, Staff Attorney, ACLU,
& Rebecca Ojserkis, Fellow, Women’s Rights Project