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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 for each 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.