Technology-Enhanced Employees and the Americans with Disabilities Act

By Lee, Konrad S.; Read, David W. | The Journal of High Technology Law, January 2018 | Go to article overview

Technology-Enhanced Employees and the Americans with Disabilities Act


Lee, Konrad S., Read, David W., The Journal of High Technology Law


I. 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 (5) Specifically, the clash between transhumanism's inevitable vanquishment of human weakness and the current outdated nontechnology-based disability law employment protections.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)

II. 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. …

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