Term Paper on "Employment Law & ADA Discrimination"

Term Paper 8 pages (2468 words) Sources: 12

[EXCERPT] . . . .

[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.]

B. Obligations of Employers and Employees

Of particular importance in light of Congressional intent is to place a greater burden and responsibility on Employers in the ADAAA, the widespread use of cybernetics may herald a reconfiguration of responsibilities for 'accommodation' under the ADAAA. As things stand right now, the determination will based primarily on the economic consequences to firms. Courts have indicated in the past that they are reluctant to interpret statutes in a manner which significantly economically burdens employers. Such that, provided there is sufficient leeway in the interpretation of statutory guidelines they will err on the side of caution. Now that, arguably, Congressional intent has been more clearly codified via the Amendments, we can still assume that the courts will be pro-defendant, and pro-commerce. What, then, if any are the economic costs to employers in complying with disability laws?

The cost according to Bird et al. can be significant. In a survey of state data the Bird study finds that firm behavior is altered and profitability can be impacted to varying degrees.[footnoteRef:19] Of particular note, the authors were able to fine high correlations between the reasonable "accommodation" standards incurred by employers and the rate at which investments were utilized.[footnoteRef:20] [19: Robert C. Bird, John D. Knopf, Do Disability Laws Impair Firm Performance, 45 Am. Bus. L.J. 145, 145 (2010).] [20: Id. at. 148.]

On the other hand the authors suggest that there was no correlation with net decreases in profitability. [footnoteRef:21] Though the empirical research quantifying the actual costs of enacted disability legislation is limited and though the study focused on state disability laws, the Bird et al., study suggests that the economic costs are not as high as public perception of said costs. Indeed the authors urge legislators to take into account the role of the press and the media in popular images of disability and its financial costs; they do so as a prelude to urging greater transparency which would relieve burdens of guessing the law from managers. [footnoteRef:22] [21: Id. At 187-188.] [22: Id. at. 189.]

Whether the alteration of public perception by various advocate and governmental groups will be effective in the face of costs associate with cybernetic enhancements. After all, what does a reasonable accommodation for an abled body individual working with enhanced individuals consist of? This paper suggests that though the options are limited it is quite certain that they will be very costly.

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… READ MORE

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