TECHNOLOGY-ENHANCED EMPLOYEES AND THE AMERICANS WITH DISABILITIES ACT.

• Author: Lee, Konrad S.

1. Introduction

   Futurists (1) focus primarily on the implications of robotics and A.I. (2) from an "employee displacement" framework when considering the future of work. (3) However, future technology's more compelling workplace ramification is human enhancement (4) or transhumanism. (5) Specifically, the clash between transhumanism's inevitable vanquishment of human weakness and the current outdated nontechnology-based disability law employment protections. (6) Transhumanism is the future, (7) and, at its broadest sense, is an intellectual movement which aims to transform the human condition by developing and creating widely available sophisticated technologies to interface with and enhance human intellectual, physical, and psychological capacities. (8) This work takes the position that current disability law employment protections--based on traditional concepts of human weakness and associated antiquated views regarding ameliorative limits--are inadequate to address concepts of human disability in the coming transhumanist employee workplace. (9)

   Going forward, Part II of this manuscript addresses the current status of disability employment law. (10) Part III establishes that technology will shortly upend our current thinking of a myriad of issues. (11) Part IV discusses how technology is already providing a link between technology and our biological selves and will continue to do so into the future. (12) Part V is a recommendation to Congress to act quickly to bridge the gap between our current definitions of disability for employment protections purposes and coming transhumanism. (13) Part VI is the conclusion which advocates prompt Congressional action on this issue. (14)

2. The Americans with Disabilities Act of 1990 and 2008 Amendments

   Building on language and intent found in the Rehabilitation Act, (15) Congress passed the Americans with Disabilities Act (ADA) in 1990. (16) Under the ADA, it became illegal for a covered employer to discriminate in employment against a disabled person. (17) Under the ADA a disability is defined as "a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual[l]; a record of such impairment; or being regarded as having such an impairment." (18) The effect of the ADA was to standardize and nationalize employment protections for the qualified disabled employee in both the public and private sector and to back up those protections with the enforcement power of the EEOC. (19)

   Congress left open the question whether an employer could take mitigating measures into account when determining whether an individual is disabled. (20) The Supreme Court resolved this question in Sutton v. United Air Lines, Inc. (Sutton). (21) In that case, a defendant airline refused to hire twins due to their extreme nearsightedness. (22) The Court concluded that the plaintiffs were not disabled--and, therefore, not subject to the protections of the ADA--because with the aid of corrective lenses, they were not substantially limited in a major life activity. (23) The Supreme Court reasoned that, under the ADA, "[a] 'disability' exists only where an impairment 'substantially limits' a major life activity, not where it 'might,' 'could,' or 'would' be substantially limiting if mitigating measures were not taken." (24)

   While lower courts quickly followed Sutton's rule, scholars and disability advocates criticized it as unduly limiting ADA's application and pedantically circumscribing the definition of disability. (25) The antidote came in the passage of Americans with Disabilities Act Amendments Act ("ADAAA") in 2008. (26) The Amendments emphasized that Congress meant for the original ADA disability definition to be broadly applied without undue analysis. (27) The Amendments rejected the Supreme Court's Sutton holding and provided that requiring mitigating factors could not place an employee--who was otherwise disabled--outside the purview of disability law employment protections. (28) The applicable language of the ADAAA reads as follows:

   (E)(I) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as-- (I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; (II) use of assistive technology; (III) reasonable accommodations or auxiliary aids or services; or (IV) learned behavioral or adaptive neurological modifications. (29) In its current form the ADA and its Amendments, reflect a Congressional intent for disability employment laws to apply persons in a wholly natural state. (30) In other words, disability of an individual is to be calculated with his/her body functioning naturally--with no technological enhancements, additions or modifications. (31) Such a view, while certainty historically consistent with Congressional intent to protect disabled persons, fails to recognize the tsunami of imminent new technological "mitigations" to human performance--transhumanism--which will shortly remove most so-called disabilities. (32) To avoid law lagging technology--as it did with internet related copyright and privacy statutes--Congress must readdress the ADA in light of coming transhumanism. (33) The 21st century employee--no matter what his/her "natural state"--will be super enabled by technological enhancement/augmentation of limbs, organs and brain. (34) In light of these considerations, the Supreme Court in Sutton was not incorrect--it was prescient. (35)

3. Future Shock is Now

   Alvin Toffler writes,

   It has been observed, for example, that if the last 50,000 years of man's existence were divided into lifetimes of approximately sixty-two years each, there have been about 800 such lifetimes. Of these 800, fully 650 were spent in caves. Only during the last seventy lifetimes has it been possible to communicate effectively from one lifetime to another--as writing made it possible to do. Only during the last six lifetimes did masses of men ever see a printed word. Only during the last four has it been possible to measure time with any precision. Only in the last two has anyone anywhere used an electric motor. And the overwhelming majority of all the material goods we use in daily life today have been developed within the present, the 800th, lifetime. In the three short decades between now [1970] and the twenty-first century, millions of ordinary, psychologically normal people will face an abrupt collision with the future. Citizens of the world's richest and most technologically advanced nations, many of them, will find it increasingly painful to keep up with the incessant demand for change that characterizes our time. For them, the future will have arrived too soon. (36) While Alvin Toffler was correct in predicting massive change, even he would be stupefied by the rapid pace of technology's claim on the future. (37) Indeed, futurist, Ray Kurzweil, (38) has postulated that every twelve to eighteen months computers double their capabilities in concert with information technologies which use them. (39) According to Kurzweil, in 2020 technologies will advanced from the present by thirty two times. (40) The current eleven months doubling rate of technology known as Kurzweil's "The Law of Accelerating Returns" is getting faster. (41)

   Currently, computer power and sensor capabilities are quantifying cellular and molecular structures easily and cheaply and tools are able to manipulate molecules. (42) Indeed, in just twenty years, technological advancement will be far more advanced than they are today. (43) Three dimensional processors and memory drives along with biological, photon and quantum computing will keep the rate of information improvement on an exponential pace. (44)

   Estimated in thirty years is a period of time referred to by futurists as "The Singularity." (45) Bio, nano, robotic and computer technology will become so rapid, so advanced, so profoundly impactful to humanity that we will not be able to ascertain or describe it or the kind of life which will exist. (46) Improved changes will be millions of times more advanced than today. (47) The only way we will be able to keep up is with robots and computers to assist us. (48) Evolution will bring about artificial general intelligence (AGI) (49) and AGI will come in the form of self-evolving machines. (50) Without fear of death, poverty, boredom, disease, pain, or even maintenance, preoccupation with self-interests may diminish or even dissolve. (51) To be "alive" will be redefined to a series of "spontaneous events." (52)

   Forty years out, paradigm after paradigm, the development of an interactive environment, quantum tech, and radical life extension, will advance minute by minute. (53) Accelerating intelligence, genetic engineering, nanobots, and computer brain technology will bring about human, animal, and machine communication. (54)

   Finally, fifty years out, the technology that is a quadrillion times more advanced than today will give us the ability to perceive a quadrillion. (55) There will be an explosion of highly intelligent biological, non-biological, micro, nano, virtual, mixed, and morphing life forms colonizing the solar system and beyond. (56) Life spans will develop into life continuums. (57)

   Against the onslaught of this technology surge, the biology of mankind cannot remain the same. (58) Transhumanism, is inevitable. (59) Merely twenty years ago, the technologies not present in the average mobile telephone were unthinkable. (60) The same will be true for human enhancement technologies. (61) In today's society, such machine/man interface will become common place and natural. (62) As Eve Herold, (63)...