Technology and disability accommodation in ADA employment law

Employment Law & ADA Discrimination

Though the breadth of Employment Law is extensive the common thread running through the field is that legal protections are provided to individuals in the American workforce whose opportunities cannot be preserved without legal recourse. Among the most vulnerable of groups are those individuals who are considered disabled.[footnoteRef:1] As such, this paper discusses both the evolution of the Americans with Disabilities Act of 1990 and the ADAAA of 2009[footnoteRef:2], and does so in the context of identifying future challenges in implementation due to technological advances in the workplace. The ADA and the ADAA are concerned with more broadly issues of accommodation including those outside of the workforce. This paper, however addresses the ADA of 1990 and the Amendments within the context of employment and employment discrimination litigation. This paper explores whether employer concessions and workplace modifications for qualified disabled employees will run into technological barriers or be aided by technological advances. This paper explores the intersection of technology and disability as it relates to employer responsibilities under both the original version of the ADA and the ADAA of 2009. [1: The vulnerability of disabled individuals may often become further compounded by the interaction of additional factors such as gender, race, and class in the disabled individual. See Shawn L. Chan et al., Intersectionality and Disability Harassment: The Interactive Effects of Disability, Race, and Gender. 55 Rehabilitation Counseling, 2 (2012). ] [2: 42 U.S.C. § 1201 (1990). & 42 U.S.C.A § 12102 (Westlaw 2012 through Pub. L. No., 110-325). From now on respectively referred to as ADA of 1990 and ADAAA of 2009. ]

I. Background: Seminal Cases & Legislation in the History of American Disability Law

The historical context for the ADA is really the widespread changes and legal protections enacted during the civil rights era. During this era, legal protections for individuals on the basis of gender, race, and voting were enacted[footnoteRef:3]. Decades later the enactment of the ADA of 1990 served as an attempt to accomplish the creation of a similar legal mechanism to protect the rights.[footnoteRef:4] Prior to 2009 employment discrimination cases brought under the ADA required that plaintiffs, if they are to proceed, be able to establish that they suffer from "an impairment" which is also "substantially impairs a major life activity."[footnoteRef:5] [3: See generally, Chan, 2012] [4: Id.] [5: 42 U.S.C. §12102 (A-C). (2007). ]

Seminal cases in the late 1990s such as Albertsons, Inc. v. Kirkinburg,[footnoteRef:6] and Sutton et al. v. United Air Lines[footnoteRef:7]and Toyota Motor Manufacturing, v. Williams[footnoteRef:8] created the legal precedence that would cause courts to find in favor of the defendant and dismiss plaintiff's cases for the following two decades. [6: 527 U.S. 555 (1999).] [7: 527 U.S. 471, (1999).] [8: 534 U.S. 184, (2002).]

All of the cases were critical in creating a subgroup of individuals who were not considered disabled. Individuals with diabetes, cancer, or whose condition could be adjusted at work were all determined to be outside the purview of the ADA's provisions and thus its protection.

The standard developed by the Supreme Court in Toyota severely limited the number of employment discrimination cases on the basis of disability which could proceed, in Toyota the Supreme Court divorced conflated the impairments cited by employees and required that those impairments also "substantially" impair individuals in their everyday lives. This was in contrast to efforts by Federal District Courts to rely on an interpretation of the ADA which would allow cases to be decided on the basis of impairments as they manifested themselves in the workplace so long as they focused "on a class" of impairments.[footnoteRef:9] [9: See, Toyota v. Williams at. §b (Justice O'Connor notes that the 6th Circuit erred in its class-based categorization which was not supported by the ADA text). ]

Many of the cases before the court were viscerally repulsive and the outcomes based on the Supreme Court's interpretation were the de facto gutting of the ADA of 1990. Unreported cases such as Hayes v. Phila in the Eastern District of Pennsylvania demonstrate that even plaintiffs with schizophrenia can be denied relief (2005, Lexis 41852, at *31-32). The outcry from the disabled advocate's community was based in large part on the inability for disabled patients to draw necessary concessions from their employers or to find legal relief. This sparked the efforts to redefine and amend the ADA of 1990.

II. Analysis: The Intersection of Technology & Disability

The following analysis is determined by and informed by the changes that the ADAAA of 2009 will institute in the work place. The changes include significant changes to the ADA and Section 504 of the Rehabilitation Act of 1973, the most significant of which is the fact that it will be easier for plaintiffs in employment discrimination cases to meet the burden of showing a disability. The effect of the amendments may well be increased litigation[footnoteRef:10] and if the law serves as the necessary deterrent it is hoped it will also increase employer compliance with its provisions. [10: Lorenzo Bowman, Americans with Disabilities Act as Amended: Principles and Practices, 132 Adult and Continuing Education, 85 (2011). ]

Increased litigation is likely for a myriad of reasons. In the first instance, until the passage of the amendments federal employment discrimination cases overwhelmingly favored the defendants or employers. [footnoteRef:11] This can be attributed to the evidentiary burdens placed upon defendants in Employment discrimination cases.[footnoteRef:12] The passage of the ADAAA has increased the number of individuals who can claim the term "disability"; individuals who possess corrective measures to deal with their accommodations, in contrast to legal interpretations under the ADA of 1990, are still considered 'disabled; under the definition of 'major life activity' Congress has broadened the activities which are included; a condition which goes into remission or dormant can still be considered to be a disability; and perhaps most importantly in §6(a)(ii) Congress granted the Equal Opportunity Commission the authority to regulate the ADA and the ADAAA. [footnoteRef:13] These changes have overturned the Supreme Court's decision in Toyota, granted the EEOC a significant role, despite the Supreme Court's oft voiced complaint that the EEOC lacked authority, and significantly widened the pool of potential litigants. [11: Bowman, at. 85-86. ] [12: Bowman, at. 87.] [13: Id. ]

In a world where technology continues to play a greater and greater role the field of cybernetics is not mere science fiction. Whereas the primary threat to disabled plaintiffs lay with the courts, the recent amendments have if not limited the courts' ability to do harm entirely, at least given litigants new definitions and a stronger advocate in the EEOC. Within the ADAAA 2008 the text has no little means to accommodate the implications of changes in neuroscience and biotechnology. These are changes which may alter the very scope and definition of disability. Of particular note will be advances in technology which reduce the body to "a machine with interchangeable, replaceable, and upgradeable parts [emphasis added]."[footnoteRef:14] [14: Collin R. Bockman, Cybernetic-Enhancement Technology and the Future of Disability Law, 95 Iowa L. Rev. 1315(2012). ]

Of particular concern to this paper is a question about where the 'accommodations' employers are required to provide and the definition of reasonable in the face of the availability of enhancements which in the future may become affordable and commonplace. The other side of the coin, of course is whether the ADAAA of 2009's revision requiring courts to consider those managing their disability with the aid of medicine or technology as disabled will apply when those with enhancements begin to surpass the abilities of the common abled worker or employee? The following sections A & B. provide an introduction and exploration of the future of disability law in light of technological advances, and who will be considered disabled in the future.

A. The Intersection Between Technology and Disability

The sheer number of advances and uses of technology to slow the advance of age or disease or to compensate for injuries is astonishing. Bockman notes, that until recently aside from the brain there were few organs left which are not capable of being significantly enhanced by science and machines. [footnoteRef:15] Now even enhancements to the brain are possible via the use of "small electrodes. And even more concerning, the ongoing development of implantable electronic devices which interact with, communicate with and enhance the brain.[footnoteRef:16] [15: Id. at. 1316-1317.] [16: Id. at. 1325]

The definition of 'disabled' will be altered not only by future congressional acts or court opinions but also by advancements in science, medicine, and biotechnology. The temptation to attribute such problems to the future as the stuff of science of fiction exists, but it must be resisted. Bockman's work introduces the concept of "The Law of Accelerating Returns," this principle attributed to Kurzweil, "describes the exponentially accelerating pace of technological development." [footnoteRef:17] [17: Id. at. 1330.]

Science will make cybernetic enhancements common place, so much of modern science has been geared towards 'restoring human function' but as processes and tools become more sophisticated, the very comfort of modern humans with technology ensures that the enhancements will be widely adapted. [footnoteRef:18] Anecdotally, friends from Korea often state that eyelid surgery in Asia has become incredibly popular and widely adapted as a competitive edge in the workplace. Those Asians who do not receive the surgery often find themselves discriminated against on the basis of stereotypes. It is not difficult to imagine, that likewise, there may emerge a time when it is in one's best employment interest to participate in cybernetic enhancements. [18: Id. At 1333.]

C. Future Legal Modifications of the ADA & ADAAA

The most salient of future legal ramifications may well will lie in creating an unenhanced individuals bill of rights or a similar legal regime. Brockman notes, in the future abled people without enhancements may constitute the disabled.[footnoteRef:23] Abled bodied individuals who have not been enhanced in the workforce are not currently accounted for under the auspices of the ADAAA and its progeny. History tells us that it is only a matter of time before enhancements for the disabled become luxury selections for the wealthy. [23: Id. At 1331]

Perhaps amendments to the ADA will have future additions such that either the class of disabilities will include 'average and without advancements' and 'disabled but average with enhancements' and 'modified above average'. Though those classifications suggested are a bit tongue in cheek, they serve to illustrate the inadequacy of the amendments or the original ADA to address a constantly evolving world. This may be attributable to the static nature of the law overall and not merely to the drafted nature of the ADAAA and ADA.

The nature of disability and its contingent nature suggests that the definition along with the law will be forced to respond to the changes available in cybernetics. At the intersection of employment discrimination law will also be insurance companies who may or may not be provided to foot the bill for these enhancements, in the same way that plastic surgery is mandated when it relates to one's health. Elective procedures which were once just that 'elective' may become factually required in the workplace for disabled and abled individuals seeking to remain competitive in the workplace. The legal ramifications are primarily economic in nature, and it is probable that the ramifications fall into the hands of Congressional Committees who must refine and continue to redefine the scope of the ADA.

III. Conclusion

The ADAAA has served to increase the pool of potential litigants in unemployment discrimination cases where the cause of action is violation of the ADA provisions. It has done so primarily by overturning Supreme Court cases such as Toyota and enacting sections which grant the EEOC greater regulatory authority. It remains to be seen whether Congress has actually succeeded in forcing the courts to take an expansive definition and approach to disability.

Lessons from the history of the first version of the ADA enacted in 1990 and its predecessor from the 1970s informs us that the true definition of the ADAA 2009 and its implication in the workforce at large and with respect to the role of technological advances will be hammered out in the court rooms across this country. Of particular note is the impact that legislation surrounding the definition of personhood and the nature of biological modifications will have on the definition of what constitutes a workplace accommodation. Will employers someday be required to alter their potential employees vis-a-vis the provision of biological and genetic enhancements? That much remains to be seen, what is clear is that the changes in the ADAAA were not sufficient to eliminate the ambiguity which will arise when the very nature of American workplaces and the genetic constitution of the worker are both altered.