Future Employer Episode 4: Mind-Implants Considered Via A Incapacity-Discrimination Lens – Employment and HR

In just the last 20 years we have made remarkable technological
advancements. Many seem geared toward making machines more human.
Our cell phones and smart devices, for example, talk to us in
surprisingly human vernacular and cars drive themselves. Despite
progress in the personification of machines, “quantitatively
comparing different computing systems in their abilities to
simulate human qualities has been a major technical
challenge.”1 In a recent study, a
group of researchers sought to investigate “if attributions of
mind towards robots suggests that people perceive robots as capable
of emulating different degrees of mind” such as empathy and
morality.

But what if the future isn’t to make AI more
human-like, but rather to make humans more AI?

Elon Musk recently “unveiled a pig called
Gertrude with a coin-sized computer chip in her brain to
demonstrate his ambitious plans to create a working
brain-to-machine interface.”2 The device allowed Musk to track
Gertrude’s neural activity when she ate and sniffed straw.
“The processor in her brain sends wireless signals, indicating
neural activity in her snout when looking for food.”
Neuralink, Musk’s company, is developing a device that consists
of a tiny probe containing more than 3,000 electrodes attached to
flexible threads thinner than a human hair that can monitor the
activity of 1,000 brain neurons, all of which Neuralink will
decode.

According to BBC News, the interface’s short-term goal is to
assist with or “cure” certain illnesses or disabilities
by allowing the microchip to compensate for areas in which the
brain cannot access memories or control motor functions. Neuralink
contends such chips could eventually be used to help
“cure” conditions such as dementia, Parkinson’s
disease, and spinal cord injuries. The interface could also allow
people with or without neurological conditions to control doors,
phones, or even computers with their mind.

“[T]he long-term ambition is to usher in an age of what Mr.
Musk calls ‘superhuman cognition.'” A 2019 New York
Times opinion piece described a world in which
“customers will soon be able to choose from a variety of brain
enhancements: Human Calculator promises to give you savant-level
mathematical abilities; Zen Garden can make you calmer and more
efficient. It is also rumored that if clinical trials go as
planned, customers will soon be able to purchase an enhancement
bundle called Merge — a series of enhancements allowing
customers to gradually augment and transfer all of their mental
functions to the cloud over a period of five years.” A more
recent article asks us to “[i]magine having
telepathic conversations with loved ones, instantaneously accessing
superhuman computational power, playing back memories and dreams,
or immersing yourself and every sense you possess into a virtual
entertainment experience.”

If we can enhance human cognition and thought processes,
allowing people to access information quickly and efficiently with
microchips implanted in their brains, what would that mean for the
future of the workplace?

A. The Current State of Microchip Technology

As Neuroscientist Graeme Moffat described in our recent podcasts
[Episodes 1 and 2], we are years away from achieving super
human cognition, but we are moving in that direction. Similar
technology like wearable brain monitors that track concentration
and alertness is already in use at many workplaces. These monitors
are used by individuals working in high-risk jobs such as
command-and-control centers in military operations, fighter pilots,
underground or open-pit mining operators, high-speed train
operators, individuals using dangerous machinery, or those whose
actions or decisions at work have potentially dangerous
consequences. This technology can detect loss of attention and
alertness and respond with safeguards to prevent or reduce
significant loss of life or serious injury caused by human error.
The devices track eye movement and brain waves to measure alertness
and help minimize fatigue-related accidents. Dr. Moffat explains
that this technology is already making its way into more
traditional and less-dangerous office environments in the form of
worker-assistance programs to help improve working environments by
reminding workers that they may need a break or a cup of coffee if
their metrics suggest fatigue.

Microchips implanted into parts of the body,
like the hand, have also been used to eliminate the need for keys
to unlock doors, or to log into computers. “This microchip is
the size of a rice grain, and the implantation process takes only
30 seconds.” Id. Such chips have already made their
way into some workplaces, allowing access to doors,
photocopiers, and even “the ability to pay in the café
with a touch of a hand.”

B. Can Employers Mandate Computer Chips?

The prospect of having super-computer employees will likely be
attractive to many employers, who may want to take advantage of a
“fully implanted” workforce. But we expect laws will
prevent employers from requiring employees to receive
these implants. As Chipping Away Employee Privacy: Legal Implications
of RFID Microchip Implants for Employees states, “with
powerful technology comes potential for abuse.” States
including California, Colorado, Florida, Georgia, Missouri, North
Dakota, Ohio, Oklahoma, and Wisconsin have adopted statutes
addressing human microchip implantation, with California and
Missouri specifically addressing this in the employment context.
Id.

California Civil Code section 52.7(a) provides
that a person shall not require, coerce, or compel any other
individual to undergo the subcutaneous implanting of an
identification device. “Identification device” means
“any item, application, or product that is passively or
actively capable of transmitting personal information, including,
but not limited to, devices using radio frequency technology.”
Id. at § 52.7(h)(1). It is not clear whether this
would apply to a device that did not track or identify an employee,
but instead enhanced their cognition and performance.
“Require, coerce, or compel” explicitly prohibits
“the conditioning of any private or public benefit
or care on consent to implantation, including
employment, promotion, or other
employment benefit, or by any means that causes a
reasonable person of ordinary susceptibilities to acquiesce to
implantation when he or she otherwise would not.” Id.
at § 52.7(h)(4) (emphasis added). The law allows for a private
right of action and provides hefty penalties, including an initial
$10,000 penalty and then $1,000 foreach
day the violation continues until the deficiency is
corrected. Id. at § 52.7(b). The statute further
provides attorney’s fees and costs, and punitive damages.
Id.

Missouri Rev. Stat §285.035(1.) similarly
provides that “[n]o employer shall require an employee to have
personal identification microchip technology implanted into an
employee for any reason.” The law defines “personal
identification microchip technology” as “a subcutaneous
or surgically implanted microchip technology device or product that
contains or is designed to contain a unique identification number
and personal information that can be noninvasively retrieved or
transmitted with an external scanning device.” Id. at
§ 285.035(2.) Any employer who violates this section is guilty
of a class A misdemeanor. Id. at § 285.035(3.)

Even without specific callouts in the employment context, other
states’ statutes are broad enough to cover the public and
private employers. 63 Okl. St. Ann. § 1-1430,
for instance, provides “[n]o person, state, county, or local
governmental entity or corporate entity may require an individual
to undergo the implanting of a microchip or permanent mark of any
kind or nature upon the individual.” The law permits a $10,000
fine on any person who violates the act and “each day of
continued violation shall constitute a separate offense.”
Id. at § 1-1430(B.)

On a basic level, microchips may simply allow implanted
individuals easier access to physical spaces or the ability to
control physical objects such as computers, phones, and doors with
their minds. As technology associated with implants continues to
evolve and operate to “merge” the human brain with
computers, however, we will likely see more specific laws related
to discrimination, privacy, and right of access to information
stored within such microchips.

That said, while laws may prevent employers from
mandating that employees microchip themselves, they will
not likely stop individuals from doing it on their own volition,
which may drive an “arms race” towards learning and
performing rapidly in education and in the workplace. As Dr. Moffat
described in our podcast, the hold-outs may find themselves
struggling with how to compete with individuals who have
super-human cognition and the ability to control machines and
computers, due to a microchip implanted in their skull.

C. How Might The Law Respond To This Technology In The
Future?

Naturally, concerns arise that those who “opt-in” to
brain implants will receive preferential treatment if employers
perceive implanted individuals as smarter or more efficient. How
will non-chipped employees compete with employees who can control
computers, phones, doors, and other machines with their minds —
let alone employees who have super human cognition? In our third and fourth podcasts, Seyfarth Attorneys Christopher J. DeGroff and Christina Meddin discuss how such future
technology may collide with existing law prohibiting discrimination
in employment. They also forecast the potential for the legislature
to enact new laws specifically prohibiting employment
discrimination based on not having a brain implant.

1. Adapting Existing Discrimination Law To New
Technology

If brain implants become commonplace, employees may attempt to
bring employment discrimination claims under existing federal and
state law, including Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. 2000e, et seq.; the
Americans With Disabilities Act (“the ADA”), 42 U.S.C.
12101, et seq.; the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. 621, et seq.; or the Genetic
Information Nondiscrimination Act (“GINA”), 42 U.S.C.
§ 2000ff, et seq. Together these federal laws protect
employees from discrimination on the basis of sex, race, color,
national origin, religion, disability, age, and genetic
information. Many states have state-specific laws prohibiting
discrimination on the same and other grounds.

As explained by Christopher J. DeGroff, a Seyfarth Partner
skilled in discrimination law, brain implants may gather
non-obvious demographic data (e.g., ethnicity, national origin,
religion) or genetic information. If such data were shared with
employers through workplace technology associated with an
employee’s implant, and, after learning this information, an
employer took actions against an employee, an implanted employee
may claim intentional discrimination under Title VII, GINA, or
other existing laws. Likewise, even if employers are not aware of
whether their employees have an implant, employers may still face
liability under a theory of “disparate impact”
discrimination. This theory applies even if the employer does not
intend to discriminate. Under this concept, if an employer
requires implant technology for certain positions, and applicants
or employees are unable to get an implant for religious or medical
reasons, they may assert that the employer’s facially-neutral
policy of requiring an implant has a disparate impact on them based
on their religion or disability.

As explained by Christina Meddin, a Seyfarth Partner who
focuses her practice on leave and accommodation law, depending on
how widespread implant technology becomes, not having an implant
could eventually be seen as a “disability” for the
purposes of disability discrimination in the workplace under the
ADA. The ADA currently prohibits employers from discriminating
against employees based on real or perceived disabilities. The ADA
defines a “disability” as a physical or mental impairment
that substantially limits a major life activity. Major life
activities include, by way of example only: thinking, learning, and
working. To determine if someone has a “disability,” the
person must be substantially limited in one or more major life
activities as compared with most people. If brain implant
technology is widely used, employees may be able to establish that
not having an implant constitutes a “disability.” Put
another way, whether one’s ability to think, learn, and work is
substantially limited without an implant as compared with most
people may depend on how many people become implanted. At the
hiring stage, employers cannot make disability-related inquires.
Accordingly, to the extent not having a brain implant were
considered to be a disability, employers would be prohibited from
asking an applicant whether they have a brain implant because this
inquiry would constitute an impermissible disability-related
inquiry.

Employers are permitted under the ADA, however, to ask
applicants whether they can perform the essential job functions of
a particular position. Employers are also permitted to make
disability-related inquires as long as they are job related and
consistent with business necessity. If employers could designate
having a microchip brain implant as an essential function of a
particular job, non-implanted individuals may struggle to state a
claim for intentional discrimination under the existing ADA
framework.

Additionally, the ADA requires employers to engage in an
interactive process with disabled employees who request a
reasonable accommodation for their disabilities. If non-implanted
status becomes a recognized disability, employers may be faced with
providing accommodations for those employees who cannot (or refuse
to) receive the implants.

Implant technology might turn other discrimination law on its
head. For example, if this technology “reverses” the
age-related effects of cognitive functioning and, as a result, the
population remains in the workplace much later into life,
legislation may evolve to push back the age for age discrimination
protection under the ADEA to well over 40. Additionally, if
individuals are able to work well into their 80s and 90s and the
median age of retirement increases, there may be an oversaturation
of the workforce, triggering laws geared towards mandatory
retirement age in certain industries.

2. Creating New Discrimination Law To Address New
Technology

People opposed to this type of technology may lobby Congress to
specifically legislate against discrimination against non-implanted
individuals. Society may thus create an entirely new protected
status (being non-implanted) to prevent implanted individuals from
obtaining the most elite jobs. Laws may further address performance
standards, requiring employers to adopt different standards for
individuals with implants versus those without, to avoid forcing
people to be implanted in order to “keep up.”
Alternatively, the laws discussed above may be amended to prohibit
discrimination based on whether someone has a microchip implanted
into their brain.

If being non-implanted were a protected category under one or
more laws, employers might be prohibited from asking whether
individuals are implanted or prohibited from using technology that
would reveal whether an employee is implanted. If not having a
brain implant became a protected status under the law, however,
employers may still face liability under a disparate impact theory
discussed above. Even if an employer does not know that individuals
it hires have implants, for example, if a disproportionate number
of implanted individuals were hired or promoted based on neutral
hiring, promotion, or performance standards, non-implanted
individuals may assert disparate impact claims, even if the
employer did not intend to discriminate against them.

Even if an employer does not ask an individual if they are
implanted, employees may self-disclose. In that regard, if
“not being implanted” eventually becomes a protected
status under the law, employers may be tasked with coming up with
technology or other processes that ensure equal treatment in the
workplace or accommodations upon request.

3. Privacy Rights

If technology becomes so advanced that it can read and store
employees’ thoughts on a second-by-second basis, employers
might be eager to access employees’ “thought records”
to ensure that workplace decisions are not made for an improper
purpose. Employers may want to prevent employees from taking
confidential information and trade secrets with them upon
separation from their employment. Ray Kurzweil, the futurist and
Director of Engineering at Google, said he expects that we will be able to back
our brains up to the cloud by 2045 — allowing us to
“live on” well beyond a normal life span. But privacy law
may collide with discrimination law. If a person’s brain and
thoughts are capable of being uploaded on the cloud, employees may
(rightfully) be very wary of anyone rifling through their most
private thoughts; even if, for example, their employer has a
legitimate interest in ensuring nondiscrimination or in
confidential information and trade secrets that employees may have
on their personal cloud. Thus, laws may also respond to protect
confidentiality and to provide privileges for individual privacy
interests in personal thoughts. To that end, the law will have to
provide parameters for those thoughts belonging to employees
personally versus those that may belong to their employer, if ideas
or thoughts are imagined in the scope of employment.

We will consider these privacy rights and trade secrets issues
in more detail in upcoming articles and podcasts on the issue of
brain implants.

Footnotes

1. Oliver
Jacobs, Kamel Gazzaz, and Alan Kingstone, Mind the robot!
Variation in attributions of mind to a wide set of real and
fictional robots, last visited: May 12, 2021, available at: https://psyarxiv.com/p49g7/.

2. BBC
News, Neuralink: Elon Musk unveils pig with chip in its
brain, last visited: May 12, 2021, available at: https://www.bbc.com/news/world-us-canada-53956683#:~:text=Elon%20Musk%20has%20unveiled%20a,brain%2Dto%2Dmachine%

20interface.&text=The%20interface%20could%20allow%20people,or%20computers%20with%20their%20mind.

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