Introduction

Consider the following job interview scenario and variations:

Alice shakes hands and sits down at the table with Zach, the HR manager at Alpha Accounting, for her second face to face interview. Everything has gone well and she feels good about getting this highly competitive and well compensated job in a top firm. After all the background checks, tests and calling references, she’s made it past scores of other applicants and is ready for the final steps. Zach asks several specific questions about her best and worst work experiences, her strengths and weaknesses, her ideas for improving performance—all questions she’s fielded before and honed her answers. Things are going well. Zach emphasizes that the person who gets this job has to be at their best…

  1. A.

    Then Zach says that one thing people increasingly do in order to perform well at this kind of job is make use of certain performance enhancers—drugs or sometimes brain stimulation technology for improving alertness or focus, for staying awake long hours, for improving memory, even for improving social interaction. Alpha Accounting, however, considers this a morally questionable and legally tricky practice that is unfair to other employees. So, Alice would have to sign an agreement that she will not use any such techniques and will agree to be tested for any drugs that might affect performance.

    or

  2. B.

    Then Zach says that one thing people increasingly do in order to perform well at this kind of job is make use of certain performance enhancers…Alpha Accounting strongly promotes this practice, particularly as competition with other firms heats up. So, Alice would have to agree to use such techniques as warranted for specific situations. The company, of course, would provide the modifications or reimburse the cost.

    or

  3. C.

    Before Zach continues, however, Alice says that one thing people increasingly do in order to perform well at this kind of job is make use of certain performance enhancers…She tells Zach that she has regularly used such techniques before and assures him and the company that she will continue to do so. This means, she says, that Alpha Accounting can count on her performance like no other, because it doesn’t depend on shifting moods or personality conflicts or the weather—her performance, she says, is optimal, predictable and consistent. She says she can work harder, longer, and better, and can prove it.

None of these scenarios is far-fetched. To some extent, they already occur, although in unstated or at least less explicit ways. In the near future, however, they may all become explicit options and society will be called on to determine how to manage them. Whether laissez-faire or hands-on, a policy will have to handle situations for which there are at best, unclear precedents.

Over the past three decades, research in neuroscience has exploded. The research covers a wide variety of areas, from basic physiology and biochemistry to behavior and cognition. A common technique for such research involves altering some element of the chemistry, electrophysiology, or structure of a brain in order to see what consequences result, with the goal of determining the relationship between biology and function. Numerous studies have indicated that a wide array of cognitive and behavioral phenomena can be affected by such interventions, from memory to mood to morality. While the purpose of this research has often been to understand brain function better, the ability to alter mental states and behaviors, even without understanding how those alterations work, has captured the attention of those interested in changing themselves and others. From medical professionals interested in improving health, to legal professionals interested in detecting competence, to the general populace’s interest in improving mood, alertness, and memory, the ability to change rather than merely understand the brain opens up a new frontier.

The power to modify brains and the resulting mental states and behavior obviously has enormous ethical, legal, and policy implications. The developing fields of neuroethics and neurolaw have focused on these issues, analyzing and anticipating what neuroscience techniques can accomplish. In both fields, emphasis has been placed on how freedom and responsibility might be undermined by research in the neurological bases of behavior, how social inequity might arise from enhancing cognitive abilities, and how detecting mental states might challenge privacy. These issues have lent themselves particularly well to debates about regulatory policy within medicine and criminal law. However, there is another very important area in which neuroscience and neurotechnology will affect society that has received far less attention—the realm of business. While at first glance, the role of neurotechnology in business may lack some of the vividness of its role in medicine with neural implants, psychopharmacological brain boosters, and “better than normal” treatments, or its role in criminal law with lie detectors, memory scans, death penalty appeals, and fMRI slides of psychopath’s gray matter, the effect of neurotechnology on business and employment is a fascinating and largely uncharted territory offering a wide array of moral and legal puzzles. It is also likely that neurointerventions are likely to have a wider impact on society through business and employment law than through the more attention-grabbing justice and criminal law for the simple reason that the number of people who are directly engaged with the employment sector of society dwarfs the number of those who are directly engaged with the criminal justice sector of society.Footnote 1

This paper will lay out a framework for understanding and analyzing the ways in which neuroscience can affect the moral and legal environment of employment. Our goal is primarily descriptive and introductory rather than prescriptive, although we do point toward considerations that should be starting points. We aim to provide a birds-eye-view map for identifying the issues of what could be done, who could do it, to whom it could be done, and how its fits into existing moral and legal conventions. Our hope is that this map will assist in future research in a variety of disciplines and perspectives.

We will first outline the business context, identifying populations involved, roles played, and the relationships created. In particular, we will describe the employment context—enumerating the various points at which people interact as applicant, employee, and employer and the various considerations that are relevant in those interactions. Taking these interaction points as our guide, we will lay out the ways in which neurotechnology could alter the extent, nature, speed, and culture of employment.

We will then outline the policy context, identifying important elements to consider when forming policies, legislating, and applying existing rules to new situations. We will look at the major ethical concerns that arise and at the existing legal framework and consider the balancing of interests that would inform any deliberation about what should and should not be allowed.

Finally, we will outline a framework for analyzing the types of changes that neurotechnology may create in employment, the cultural and moral character of those changes, and the possible policy responses available. We describe a set of possible policy outcomes that could be used to deal with employment neurotechnology. These policies will form a focus for moral, legal, and social arguments.

The Employment Context

Agents and Actions in Business

While almost all people are affected by business practices, the specific roles they inhabit make a difference as to what considerations they are subject to and what expectations and obligations they hold. Those roles (and they may inhabit more than one at a time) will position them with regard to neurotechnology in different ways. For example, employers both create jobs and determine what the necessary requirements are for those who hold those jobs. As such they will rightly be interested in detecting the abilities and capacities of job applicants, predicting the suitability and performance of applicants, specifying work expectations, and improving workers’ performance.

While employees are often seen as the subordinate member of the employer/employee dyad, this depends a great deal on contextual labor market dynamics—with some markets providing job applicants greater power than others. Those seeking jobs are often in a position (in both buyers’ and sellers’ markets) to market themselves, developing a variety of skills and competing with others for a position. With regard to neurotechnology, job seekers will be interested in how they can boost their competitiveness and earning potential, while as successful hires, they will then be interested in how they might further secure their position, improve their performance, and maximize their satisfaction with work.

Within the employment context, employers and employees typically go through a process of hiring, employment, and termination. Pivot points for this process include job creation, laying out what tasks need to be performed and what traits and abilities an employee would need to perform that job; hiring, including screening candidates, measuring qualifications, and ranking applicants; evaluating performance, including assigning work, training, promoting, reprimanding, and firing.

All these situations focus on some form of assessment. Picking the right person for the job is a cliché that does in fact get to the heart of the matter. But what makes someone “right for the job”? It may seem obvious that an applicant for a job has to have certain skills, but the range of what makes a person good for a position is broad. Skills are the most common qualities people think about when considering employment—what can this person do, what do they know? The term “skill,” however, is a broader term than often at first recognized.

A skill is any existing ability, learned or not. Some skills may be explicitly related to the job (applicant must be proficient in Linux administration and JAVA VM tuning), while some skills may be directly related but less easy to quantify (applicant must be friendly and put people at ease). Categories of skills include physical skills, which are bodily abilities that range from the specific task-oriented (must be able to lift 200 lb, must be able to type 100 words a minute) to general (must be coordinated, have 20/20 vision, good hearing, endurance). Intellectual skills are facilities in thinking, understanding, and problem-solving involving mathematical, verbal, and analytic areas and include the specific (must be able to calculate specific mathematical functions) to general (must have an extensive vocabulary, must good at problem-solving and critical thinking). Social skills are a constellation of abilities that facilitate team work, interaction, and generally getting along with others. They are typically described in general terms (listening, collaborating, being respectful, being assertive) but in certain jobs can be specifically delineated (make frequent eye contact, does not fidget, has a firm handshake). Communication skills are related to social skills in interpersonal contexts but include a variety of abilities from general (good writer, good speaker) to specific (must be fluent in Spanish). Finally, cognitive skills are more akin to physical skills in that some are learned and some are part of the natural lottery. They are not the same as intellectual skills because they refer to more general abilities related to cognitive function such as alertness, attentiveness, recall speed, executive functioning, perception accuracy, fine motor control, spatial processing, and emotional self-regulation.

In addition to skills, capability is also an important trait to consider. “Capability” is sometimes used synonymously with “ability” but the term connotes not simply what one is able to currently do but what one is able to learn to do.Footnote 2 It refers to the capacity to develop new skills, knowledge, and physical traits that might be needed for future work. Capability may refer to both the more familiar “mental” traits such as memory capacity, learning speed, and focus, but can also include “physical” traits such as muscle responsiveness and bodily coordination.

While skills and the capability for learning more skills are typically the more explicit qualities that employers look for, less obvious traits such as attitudes and moral character are often crucial aspects of job performance. Attitudes are judgment dispositions (not beliefs) and they can sometimes run counter to a person’s explicit beliefs as well as be informed by them. They can be assessed to some degree by psychometric instruments and can run from the very general (trusting, suspicious, optimistic, pessimistic, apathetic, passionate) to the more specific (racist, sexist, self-confident, self-defeating). Moral character refers to stable traits of a person’s personality that are distinctly related to moral emotion, normative judgment dispositions, and the strength or weakness of personality. Classically characterized by concepts of virtue and vice—particularly Aristotle’s deficiency/excess model—moral character is not simply a judgment of a person being good or bad, but rather a set of real psychological traits that contribute predictively to determinations of a person’s future behavior and their future normative judgments. A list of typical vices and virtues will get at most of the moral character traits held important, including rashness, courage, and cowardice; prodigality, liberality, meanness; boastful, truthful, falsely modest; envious, righteously indignant, spiteful; and quarrelsome, friendly, obsequious. It should be noted here that one should not assume that what an employer might be interested in would always be the virtue. In some cases—say, a human resources manager responsible for evaluating and firing workers—being empathetic might not be desired, whereas being dispassionate would be.

Having outlined the variety of points where employment decisions are made and having outlined the variety of characteristics that employers are interested in, we can now systematically outline how neurotechnology can affect the world of employment. Essentially, the issue is how neurotechnology can enter into the process already established and practiced. What are the types of neurointerventions possible, the types of neurointerventional methods that could be used, and what proof-of-concept neurointerventional examples already exist that suggest what could be done?

Types of Neurointerventions

Much of what has been discussed in the literature regarding using neurotechnology has been in the debates over “enhancement”—largely in the medical ethics arena. “Enhancement,” however, only captures some of the phenomena of interest here. In many cases, assessment and detection technology such as brain scans may be used, which do not alter the person being scanned. In other cases, instead of enhancing some cognitive trait, “diminishment” might be desired—for example, reducing one’s memory consolidation or temporarily reducing one’s empathy (cases we will discuss below). Borrowing a useful term from Nicole Vincent, then, we will use the widely applicable word “neurointervention.”Footnote 3 This term covers nearly any use of a neuroscientific or neurotechnological technique to alter what has previously been the limits of employment-related assessment, selection, and modification.

The types of neurointerventions that are possible vary widely, but in general we can think of them falling into three categories: observational, scalable, and existential neurointerventions.

Observational neurointervention is used to detect, hide, and predict various characteristics of interest to employers and employees. While various forms of psychological and physical testing have been used for years—in addition to old-fashioned personal interviews and calling references—neurotechnology offers the promise of getting at this information more quickly, more objectively, and more substantively, even getting at information the job applicant may themselves be unaware of. Possibilities include detecting brain activity and brain structure correlated with cognitive and personality traits, testing memory capacity, testing moral and emotional reactions to likely job tasks, detecting implicit attitudes, and predicting the likelihood of criminal behavior. Observation-only technology would limit agents to ruling in or ruling out applicants as they were.

Scalable neurointervention—the ability to enhance, reduce, or selectively modulate cognitive abilities—would open up more opportunities to select from a wider variety of applicants and to alter the job descriptions that existing employees already had. Examples include enhancing alertness and focus, diminishing the need for sleep, temporarily increasing emotional connection to a team and ratcheting up group loyalty, temporarily decreasing empathy for purposes of bargaining, improving memory, reducing implicit racial bias, promoting assertiveness, increasing sociability, and modulating the desire to punish others for infractions. Scalable technology would work with what the applicant or employee already has.

Even more powerful, and more malleable, would be the ability to change what traits exist altogether—existential neurointerventions. This would be the most extensive application of neurotechnology but would also be the most extensive expansion of employment opportunities. Instead of relying on screening processes to find the right employee from the pool that exists, a new system could arise in which both employers and job applicants could create the compatibility and “qualified-ness” for positions. Depending on the power of the technology, the options here are near-endless, including preventing memories of secret negotiations or proprietary products from ever forming in the first place (obviating the need for confidentiality clauses), immunizing workers such as soldiers or police officers against developing post-traumatic stress disorder, inserting temporary knowledge, eliminating the need for sleep, creating the ability to see in the dark, and implant technology allowing for direct communication with computer systems or with other people. Existential technology would go beyond what applications and employees currently have.

When first hearing about these sorts of neurointerventions, people often have a science-fiction image of cybernetic implants, or genetic engineering, or nanotechnology. While those techniques are possible and are certainly being researched, the methods by which some of these interventions may be achieved are far less speculative, demonstrating the need to take seriously both the timeline and likelihood of what might otherwise seem a future issue.

One of these is wearable technology. Worker’s performance has long been modified by clothing, though it is easy to overlook this. Protective clothing such as gloves, boots, helmets, or safety glasses are used to prevent injury and increase performance through preventing pain (e.g., in handling hot or rough materials). Magnifying glasses, sunglasses, or even substances such as sunscreen or insect repellant have often been offered or required of employees as a necessity or enhancer for their jobs. As the sunscreen example shows, however, the key idea of a wearable intervention is not about clothing per se, but about non-invasive, removable technology—something that can be donned or doffed as a job requires. In the realm of neurointerventions, a variety of wearable technologies are becoming available for a variety of uses. Examples include Google Glasses, Apple Watch, Polo stress shirts, augmenting contact lenses, augmenting hearing aids, data gloves, activity trackers, biomonitoring devices, electronic textiles, transdermal nicotine dosers, RFID tags, and EEG controllers. These technologies could be used to augment an employee’s performance (faster data access, increased vision and hearing) or to monitor employees for health or crime prevention (recording heart rate, galvanic skin response, location, activity levels).

Pharmacological interventions are more invasive (in the literal sense of entering the body) but are increasingly the most common and alluring technologies. This is not new. Caffeine has long been an office staple—many times provided by the employer in addition to freely being used by the employee. A stimulant, caffeine increases alertness, reduces sleep, reduces fatigue, improves vigilance, improve performance on many tasks, is well tolerated, is well managed by most caffeine consumers, and overall is seen as having predominantly positive effects (Smith 2002). The commonness and legality of caffeine leads it to be overlooked as a cognitive enhancer, but it is one. Other drugs are increasingly being used for similar or related effects, including boosting alertness, increasing productivity, increasing focus, reducing anxiety, irritability, and fatigue, and reducing the need for sleep. A panoply of chemical agents also are being shown to have significant effects on specific social attitudes, moral judgment, emotional attachment, memory, and economic judgment. Any of these could be used temporarily or long term for specific tasks in specific jobs.

Radiological technology is familiar to most people interested in brain science, but radiological intervention goes beyond simply scanning brains using PET or fMRI to acquire information. It can also be used to alter brains and behavior. Using transcranial magnetic stimulation (TMS) or transcranial direct current stimulation (tDCS) has been associated with changes in mood, memory, dexterity, appetite, object recognition, marksmanship, math problem solving, and moral judgment. Given the typically external application (as with wearable technology) and the temporary effects of application, these techniques could be used for a number of specific tasks.

Mechanical technologies provide the same sorts of options as many wearable devices do, but puts them inside the body—sometimes deep and more permanent, sometimes simply subdermal. The easiest examples of this would be RFID implants under the skin to serve as tracking devices and ID transponders (Cellan-Jones 2015). Deeper existing implants already serve to deliver pain medication or nerve stimulation.Footnote 4 Brain implants are used for seizure control and other medical goals. On the horizon, however, are implants in the form of artificial sensory organs, deep brain stimulators, and interface devices that could provide more precise and programmable options.

While some of these technologies are speculative or still in early stages, there are neurointerventions already available. By no means a comprehensive list, here is a small selection of what can already be done:

  • Selective hiring for cognitive traits—hiring people with autism-spectrum conditions for their ability to perform repetitive rule-based tasks (Griswold 2014).

  • Memory enhancement—strychnine has been shown to improve task memory in rats (McGaugh and Roozendal 2008), TMS has been shown to improve associative memory (Wang 2014), and CREB-cycle activators have indicated general memory enhancement (Glannon 2006).

  • Memory insertion —scientists have created specific false spatial memories, showing that memory insertion is possible (Lavilleon et al. 2015).

  • Sleep reduction —modafinil d-amphetamine and the far more common caffeine have all been shown to improve speed and alertness with varying effects on executive functions during sleep deprivation (Wesensten 2005).

  • Problem-solving —methylphenidate has been shown to improve problem-solving skills in novel problems in healthy subjects (Mehta 2000).

  • Improved lying —tDCS has been shown to transiently improve the speed and skill with which a person can lie (Karim 2010).

  • Rejecting unfair offers—temporarily decreasing serotonin levels has been shown to increase subjects’ rejection of unfair monetary offers (Crockett et al. 2008).

  • Group loyalty —increasing oxytocin levels has been shown to increase in-group favoritism and increase out-group derogation—phenomenon related to ethnocentrism and implicit racial bias (De Dreu et al. 2011).

  • Implicit racial bias —propranolol has been used to virtually abolish implicit racial bias in subjects, without affecting any explicit racial prejudice measures (Terbeck 2012).

  • Utilitarian Moral Judgment—repetitive TMS disrupting activity in the right dorsolateral prefrontal cortex increases utilitarian moral judgments (Tassy 2012). TMS disruption of the right temporoparietal junction has been shown to lead subjects to pay less attention to actors’ mental states and make moral judgments based more on consequences (Young 2010).

The Policy Context

The developing ability to modify our cognitive traits opens up a host of concerns about what should be allowed and what should be prevented. Consider the job interview scenario and its variations that opened this paper. Should Zach’s company be allowed to require neurointerventions? Should Zach’s company be allowed to restrict neurointerventions? Is Alice a bad person for taking enhancers? Is she being unfair? Or is she exceptionally virtuous because of her drive for self-improvement? To answer these questions, broadly speaking, four considerations should be central: effectiveness of neurointerventions, interests of the parties involved, applicability of ethical principles, and the legal framework already governing employment.

Effectiveness of Neurointerventions

Since the motivation for using neurointervention technologies is about improving work, the effectiveness of any of them is a crucial consideration. Do these methods work? Do they make a difference in productivity or efficiency or quality? Are any improvements offset by side effects? Are improvements demonstrable in outcomes? Sometimes appearances, or even felt experiences, can be misleading—as the research on Adderall (a drug widely used by college students as an enhancer) has shown. While people who take the drug believe their performance is improved, it is actually only their perception that has changed and not their performance (Ilieva and Farah 2013). Given side effects and cost, the actual effectiveness of a neurointervention should be weighed by organizations and by individuals.

Even if we could successfully modify memory, attitude, attention, or other traits, it is still important to ask if modifying the trait has the overall desired effect. Would the modification be successful overall in achieving our goals? One factor to consider is the difference between an absolute advantage and a relative advantage. An absolute advantage is a modification that has a beneficial effect regardless of whether other people have that modification. For example, increased immunity to infection is a benefit to anyone who has it. The health benefit to you does not depend on others being less healthy than you. A relative advantage, however, does depend on traits of others. A classic case is the desire of some parents who are themselves short to have their children treated with growth hormones. If a parent worries their child will be disadvantaged by being 5 feet tall, they might want to make them 6 feet tall. But if all parents increased their children’s height evenly, then the 6-foot-tall child would now simply be the shortest among the 7-foot-tall children and consequently disadvantaged. There would be change, but no advantage.

While most of the kinds of neurointerventions and modifications discussed in this paper are likely to be absolutely advantageous as well as relatively advantageous, it is worth examining both at the micro- and macro-level. In terms of social policy, a lesson from the past is instructive. In the first half of the 20th century, various prognosticators thought that by the year 2000 our “labor saving” technologies would reduce our work week to 30, 20, or even 15 hours (Elliott 2008). That did not happen. Americans are working more than ever—no time was saved or reappropriated for other valuable uses. Why? One reason is that although our technologies did increase efficiency and productivity, we simply ratcheted up our expectations of what counted as acceptable work and “work expands so as to fill the time available for its completion…” (Parkinson 1955). We should guard against the naiveté that super-duper employees will inexorably make things better. Super-duper can quickly become the new normal (Vincent and Jane 2014), in which case productivity may have increased but there would be little relative advantage.

Interests of the Parties Involved

The various agents involved in employment and commerce will be situated in different positions with regard to the impact and opportunities afforded. Sometimes that creates competing interests, but not always. There are also many loci for cooperating interests and it is important to remember that almost no one is purely an employer, an employee, or a customer—we are all, all these things.

Employer interests that immediately come to mind concern profitability, competitiveness, and efficiency. From hiring to managing, businesses would be interested in neurointerventions because they potentially offer ways to do better work, more work, at lower costs, with more profits, in a better social environment. While this may be obviously positive for most businesspeople, sometimes legislators and social critics treat businesses as morally suspect simply because of the focus on profitability. There are numerous problems with being motivated purely by profit (as the very existence of the business ethics field attests to) but profitability is a necessary condition for business success, even if just one goal among others. However strong the role of profit for a business though, it is important when thinking of policies governing business’ use of neurointerventions to remember that in a free market system, businesses are not compulsory philanthropies. While few would argue for carte blanche in hiring and management practices, it is always worth asking whether a policy will require businesses to hire people who interfere with their goals or prevent them from effectively screening out those who would assist with their goals.

Employee interests will obviously center on getting or keeping a job and having a stable income. This often puts them in a position of relative weakness with regard to an employer—depending on the supply and demand at the time. Employees also have an interest in liberty and privacy, both of which are curtailed by employment in many ways but may be even more strongly affected by brain scanning, biomonitoring, and cognitive modification. Employees will certainly have an interest in avoiding as much risk as possible without falling short of their income and stability goals and thus there are prima facie differences between passive brain scans with no risks and neural implants that may have higher risks. However, employees also face risks in terms of more or less safe workplaces, more or less congenial co-workers, more or less organizational security—all issues that may be improved by neurointerventions.

An important thing to recognize about employee interests is the impetus for neurointervention use. There is tendency we have observed among academics and social critics to assume that businesses would push for neurointerventions, while workers would resist and likely be caught up in a conflict between their personal interests and the demands of employers. It is not unusual to hear the situation framed in terms of a corporate “big brother” exploiting workers. However, the dynamics do not have to work in that direction—and for the most part already are not working in that direction. People already willingly, often enthusiastically, seek out nootropics, performance drugs, and innumerable gadgets in order to enhance themselves. So instead of a “top-down” phenomenon, neurointerventions in employment are more likely a “bottom-up” phenomenon. Job seekers could choose to modify themselves in order to compete. They might (as they already do) take Adderall or Provigil to be more alert and focused—and either hide such modifications in order to maintain a silent advantage, or showcase modifications in order to stand out. Many college students, for example, have been raised in a world where Adderall is commonplace as a cognitive enhancer and would not think twice about offering to take it or other agents as a condition of their employment.

Applicability of Ethical Principles

The issue of neurointerventions in business is not at all a matter, then, of simply protecting vulnerable workers from greedy bosses. When someone quickly responds to hearing about the possibilities of workplace neurointerventions by saying “companies shouldn’t be allowed to do that!” it is worth asking “allowed to do what?” and also to reframe the issue by asking “should people be forbidden from using neurointerventions to improve themselves?” Framed this way, there may be greater hesitation in calling for prohibition or assuming that the motivation for neurointerventions comes from the top.

In analyzing the ethics of neurointerventions, a variety of principles will be invoked. It is not our goal here to simply argue that some specific policy should be followed because it is indicated by principle X—whether that principle is utility, or respect for persons, or protecting rights, or promoting virtue. Moral psychology increasingly suggests that much of the appeal to principles is based on an emotional and intuitive reaction to an issue followed by a search for the principle that best seems to square with the reaction we have (Haidt 2001). If the business neurointervention issue triggers a response about big business treating its workers instrumentally, then a Kantian critique will likely follow. If it triggers a reaction that this could greatly increase efficiency and satisfaction, then a cost/benefit defense will likely follow. If it triggers a sense of revulsion at pressuring workers to do something scary, then a right to bodily integrity will likely be invoked. If instead a sense of resentment at trying to control individuals arises, then a right to self-determination is appealing.

The point here is not that there is no value to ethical analysis. The point is that multiple principles will appeal to people depending on what the framing of the issue is and what the actual motivations, consequences, and experiences are of the business neurointervention phenomenon. Even more complexly, the framing and consequences and experiences themselves are open for shaping. Hopefully, a broad discussion of possibilities and a focus on the multiple goals we have regarding work will inform how we construe the moral issue.

One consideration of a metaethical nature should be weighed heavily, however. It is a consideration often ignored in talking about technological policy. What is the point of working in the first place? If we do not have a balanced sense of what work is supposed to provide in human life, then it could be easy to forego opportunities to improve the work experience and conservatively settle for an inferior, conventional system (unenthusiastically making widgets and waiting for retirement). Equally dangerous, it could be easy to simply increase work until we are all wagging tails and no dogs, instrumentalizing ourselves to be optimally productive but forgetting that sheer productivity itself was not the goal (widgets are to be used for something and simply making more and more of them faster and faster makes human work serve widgetry, not humanity).

Legal Framework of Employment

While employers and employees often strive for a higher standard, the baseline of policy analysis in the employment setting is typically the law. Employment law is an all-encompassing term for any and all laws governing the relationships between an employer and employee (Garner 2014). While laws may be changed and are not determinative of what morally should or should not be done, scholars have pointed out that the law is often shaped by moral convictions and intuitions about rights and fairness and unjust discrimination (Dworkin 1986). As such, the law is an area in which much moral argument has taken place and in which new issues and new ethical problems will be played out.

At the base of almost all employment law is the Employment-at-Will Doctrine. The meaning is simple: Absent an employment contract or other type of agreement, employers may fire employees for “good reason, bad reason or no reason at all” (Berks 2000). The employment “contract” may be terminated by either employee or employer without notice and without reason (Berks 2000). While some states have modified this hard line rule, the rule still exists in some form in all states in the US (Dimatteo et al. 2011). This basic principle is the starting point for employment law in the United States. However, there are many legal exceptions to the principle, most of which have been motivated by moral reasons.

One of the earliest of those exceptions is the Fair Labor Standards Acts of 1938 (FLSA), which provides protections for overtime pay and wage standards. In general, the FLSA requires employers to pay a federal minimum wage to non-exempt employees and mandates a 150 % payment for hours worked over 40 hours in one workweek. Interestingly, the overtime wage addition was of course included to compensate for the burden of additional work, but also as a financial incentive to increase employment by making it less expensive for employers to hire more workers rather than to require more hours from existing workers—i.e., a job creation law. Significantly for this discussion, the FLSA does not limit the number of hours an employee be asked to work (Miller 2001). The interest in protecting individual choice even at the risk of overwork (a prominent feature of US moral culture) has led to a situation where people choose to work as long and as hard and at as many jobs as they can physically bear—leading to the US labor force working more than any other in the world (McCarthy 2014).

Other exceptions to employment-at-will include the Occupational Safety and Health Act, which regulates safety and health standards and focuses on safe working environments (US Department of Labor, Workplace Safety and Health). The Employee Polygraph Protection Act prohibits most private employers from using any lie-detector tests in their hiring or employment of workers (US Department of Labor, Employee Polygraph Protection act). Title VII of the Civil Rights Act of 1964 is probably the most widely known federal protection in employment, making it unlawful “to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin….” (Civil Rights Act of 1964). Most recently, Congress added the Genetic Information Nondiscrimination Act of 2008, prohibiting employment discrimination on the basis of an employee’s genetic information (GINA).

Perhaps the most relevant exception to employment-at-will for the issues in this paper is the Americans with Disabilities Act of 1990 and Americans with Disabilities Act Amendments of 2008 which affect companies with 15 or more employees (ADA). The ADA provides that employers shall not “discriminate against a qualified individual on the basis of disability” in the application process, in hiring, promotions, firing, compensation, training, or other employment conditions (ADAA). This sweeping act provides protections for persons with various disabilities including those who may have a “physical or mental impairment that substantially limits one or more major life activities” as well as those who may be “regarded as having such an impairment.”Footnote 5 If an employee is qualified for a position, but in need of an accommodation to perform his job, the employer must offer a reasonable accommodation for that employee. However, an employer is not required to provide an accommodation which would result in undue hardship in their business.Footnote 6 The ADA also prohibits an employer from conducting pre-employment medical examinations and from asking an employee about disability. However, the ADA does allow an employer to “make preemployment inquiries into the ability of an applicant to perform job-related functions.”Footnote 7 After an offer of employment has been extended, an employer may then require a medical examination as long as the examination is job-related and consistent with any business necessity, including the ability of an employee to perform job-related functions.Footnote 8

Since neurointerventions are related to abilities and to detecting abilities, the ADA, as the primary law governing (dis)abilities, immediately comes into focus. The combination of neurointerventions and the ADA will no doubt lead to interesting arguments and cases (as has already been characteristic of ADA cases). One might discount the relevance of neurointerventions of the sort focused on in this paper since they are not about treating disabilities but are about moving a person beyond normal ability and, as such, would neither be protected nor prevented by ADA concerns. As we shall see, however, this may be complicated by the notoriously slippery definition of “disability” and the even more slippery definition of “regarded as having a disability”.

Given these restrictions on employment (and numerous others not discussed), employers may wonder how they may select employees without running afoul of at least one federal law. The key concept here is “qualification.” Even with the many federal laws and associated litigation, no law requires an employer to hire an unqualified employee. Employers continue to lawfully select employees based on abilities and personal attributes, and employers need not employ neutral hiring criteria. The employer’s judgment as to what functions of a job are essential and a pre-interview written job description is often considered evidence of the essential functions of the job.Footnote 9

Even in cases involving Title VII protections, employers may defend their practices by claiming a “bona fide occupational qualification” (BFOQ) defense. If an employer can show that religion, sex, or national origin is a reasonably necessary qualification in the normal operation of a business, a BFOQ defense may be established and the employer may intentionally select based on religion, sex, or national origin (Civil Rights Act of 1964; Basham 2012–2013; Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc. 1991). All of this depends on what is considered a qualification for a job and there is great latitude in how qualifications can be construed. While some job applicant traits are clearly unrelated to the productivity goals of a position (for example, the race of a tax accountant), other traits are obviously related (the focus, attention, and memory of a tax accountant), and yet others are sometimes unclear (the facial disfigurement of a tax accountant) (Stone and Wright 2013).

Of particular relevance to neurointerventions, however, are job qualifications that involve physical, cognitive, and social skills. These are where enhancing and modifying technologies can make a difference and where it is possible that either an employer could make a qualification for the job high enough or specific enough that no unmodified person could make the cut or that an employee could modify themselves enough that they would outstrip everyone in the normal pool of job applicants in meeting the stated qualifications.

Clearly there are jobs that may require employees to have certain physical abilities. For example, courts have found that employers may require an employee lift a certain amount of weight as part of the essential functions of their job (Niccolini and Basau 2009; Fulgoni-Britton and Schroeder 2014). Courts have also found other physical attributes to be appropriate hiring categories, including manual dexterity (Ivey v. First Quality Retail Service 2012) and the ability to use a firearm (Jackson v. City of Chicago 2005). Given a particular type of job, then, there is nothing that would prevent an employer from requiring lifting abilities that were beyond the unmodified strength range or that would prevent a strength-enhanced job applicant from appealing to the fact that they could do three times the work of all the other applicants.

Cognitive skills are also clear examples of bona fide qualifications. Intelligence and aptitude testing in employment have been used since World War I (Sandoval 1988). The ability to stay awake has also been held as an essential job function. For example, courts have found that a food service worker with narcolepsy was not qualified because he was falling asleep on the job (Roetter v. Michigan Dept. of Corrections 2012). Similarly, courts have found that flight instructors and tractor-trailer drivers must be conscious and alert in order to perform their jobs (Grubbs v. Southwest Airlines 2008; Coleman v. Keystone Freight Corp. 2005). While the EEOC takes the view that requiring workers to work a particular shift cannot be an essential job function, courts have somewhat disagreed and have found the ability to perform certain shift work may be an essential function of a position. For example, courts have enforced employer mandates for security watchmen (Fernando Mendez v. City of Chicago 2006) and nurses (Laurin v. The Providence Hospital 1998).

Other types of skills—so-called “soft skills”—involving personality, attitudes, and social skills are often job requirements as well, although they involve legal nuance as the line between ADA-protected mental disability and normal variation in psychological traits is blurry (Pagliarini 2014). According to the ADA, “it is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that are not impairments […] The definition of an impairment also does not include common personality traits such as poor judgment or a quick temper where these are not symptoms of a mental or psychological disorder. Environmental, cultural, or economic disadvantages such as poverty, lack of education, or a prison record” are also not protected categories.Footnote 10

The implications for the importance of neurointervention here is clear. Employers could require better-than-normal or different-than-normal qualifications for a job that would essentially require neurointerventions and employees could acquire and market themselves having better or different than normal levels and types of abilities.

Framework for Analysis

We are now in a position to outline a framework for analyzing policy options for dealing with employment neurointerventions. The term “policy” is broad here, and deliberately so. Sometimes a policy is the result of determinate legislation by a governing body. Sometimes a policy is the result of regulatory decisions. Sometimes a policy is the result of judicial rulings, the result of industry standards, simply common practice—all of which is strongly affected by moral analysis and a concern for the effects on stakeholders.

Cognizant as we are of the fact that laws and regulations can be changed, it is nonetheless likely that as neurointerventions become options for employers and employees, issues of their permissibility and desirability will likely be hashed out first within the systems of laws and regulations that already govern employment—most of which were the result of moral concerns in the first place and thus directly implicate moral analysis. The relevant parts of employment policy that inform our assessment and predictions of legal and moral reaction to employment neurointervention include the following:

  • Employers set the essential requirements for any job.

  • Employers may refuse to hire anyone not qualified for a job.

  • Employers may generally hire and fire employees at-will absent some contractual obligation or discriminatory purpose.

  • Employers may not discriminate against someone on the basis of their race, color, sex, religion, national origin, or disability provided the applicant is qualified.

  • Employers must provide reasonable accommodations for disabled applicants if they are otherwise qualified.

  • Employees may volunteer any information they wish, regardless of whether employers are allowed to consider that information.

  • Employees may leave their employ at-will absent some contractual obligation.

  • Employees may engage in a wide variety of actions geared toward increasing their competitiveness in the job market.

Given these general principles, we will lay out five main possible policy options for dealing with employment neurointerventions and clarify how the option would balance interests (what values are maximized) and what likely broad consequence would result—setting the scene for both deontological and consequentialist ethical concerns.Footnote 11 We also compare policy options to what we currently use in the US to see how big or small a shift it might be. The options distinguish between employers and employees and between a prohibition, permission, or requirement for neurointerventions. Keep in mind that the policies governing employers and employees do not have to be symmetrical. Employers could fall under one rule with employees under another.

Prohibited Use by Employer and Employee

This policy would prohibit Zach, our scenario employer, from requiring employees to use neurointerventions for the job. In addition, Alice, the employee, would not be allowed to use non-medical neurointerventions. This policy would maximize the value of protecting employees from exploitation and minimize the value of employer and employee liberty. How similar would this be to current policy?

In terms of the employer restriction on information gathering, this policy would be somewhat analogous to the existing ADA restrictions regarding pre-employment testing. While an employer may give pre-employment tests to determine the ability to perform a particular job, they may not perform a medical exam or ask about prescription drug use or the existence of disabilities for an otherwise qualified employee. In other words, currently, employers generally do not consider an employee’s use of prescribed drugs for any medical condition which does not affect their qualifications for the job under fear of an ADA claim. However, this restriction is specifically about people with disabilities. In the broader context we are discussing here, typically-abled people could be seeking to enhance (or otherwise modify) their abilities for specific reasons, not to compensate for a disability.

In terms of the employee prohibition on using interventions, the policy would be more restrictive than what policy currently mandates and would represent a greater limit on employee liberty than already exists. It would also limit efficiency and productivity to given human biology (which is precisely what advocates of enhancement want to exceed). In this sense, this policy would be highly conservative—in the literal sense of limiting human abilities and business to given, conventional levels.

Ethical concerns for this policy would then be about how much individual liberty should be restricted for the aim of protecting employees and for limiting the effects of a new technology on business culture.

Prohibited Use by Employer, Permitted Use by Employee

This policy would still prohibit Zach from requiring neurointerventions in his company and prohibit his consideration of Alice’s use of them. Alice, however, would be free to use neurointerventions. This policy would maximize the value of protecting employees from exploitation but would give considerable leeway to employee choices. It would limit organizational power and expand individual power and would thus be highly individualistic. How similar would this be to current policy?

In terms of the employee liberty to use and disclose neurointerventions, there is currently no restriction on an employee volunteering any and all information about their medical history or what drugs they may be taking. However, employers must tread very carefully in considering any information regarding medical issues which would invoke the protections of the ADA or GINA. Without the issue of disability, however, this scenario appears to raise few legal barriers. The employer would not ask about the use of voluntary interventions, but an employee could take them, volunteer that information to their employer or could keep the information to themselves. If the use had nothing to do with disabilities or discrimination, prohibiting employers from requiring neurointervention by the employee or using the information regarding interventions would be more restrictive than current laws.

This policy would probably be motivated by a desire to minimize exploitation of employees and promote their liberty (Appel 2008). However, it would not necessarily make life easier for employees because it would likely motivate a highly competitive and secretive work environment. If employees are evaluated in relation to their peers’ performance, employees would have an incentive not only to enhance, but to keep that information secret. While the employer could not use that information under this prohibition, other employees may know of the enhancement and may seek to compete by enhancing themselves. Employers would be required to take a neutral stance on enhancements, even in evaluations of employees. This could lead to unenhanced employees falling in productivity relative to co-workers, and the employers would have no certain understanding of why—possibly leading to evaluations describing the conventional employee as an underperformer. Thus, enhanced employees would be rewarded for their enhancements while unenhanced employees would be punished by the “raising of the bar” for productivity/effectiveness.

Ethical concerns for this policy would then be about how much employers should be restricted from knowing when evaluating employees and how to balance employees’ liberty with the potential for developing a hypercompetitive culture.

Permitted Use by Employer, Prohibited Use by Employee

This policy would allow Zach, our employer, to require neurointerventions and take into account the results of its use. However, Alice would be prohibited from using non-prescribed neurointerventions.

While it might appear that this option would make no sense—employers can use neurointerventions but employees cannot take them—there is a relevant distinction between “passive” and “active” neurointerventions. “Passive” would refer to technologies that acquire information from the brain but do not alter it, while “active” would refer to technologies that modify the brain. In the case of passive neuroimaging, an employer could be allowed to scan applicants’ brains for screening and prediction purposes (looking for desired personality and cognitive traits) but employees would not be allowed to use active neurointerventions to modify themselves. In other words, this would allow employers a distinct advantage in the hiring process to screen in the most desired candidates and avoid potentially problematic employees. For example, an employer might use imaging technology to screen for highly developed memory, alertness, or utilitarian analytical abilities (as psychometric tests already attempt to do) but would not allow employees to use neurointerventions to alter those capacities in themselves.

This policy would maximize the value of employer flexibility (in gathering information and using it in ways not typically allowed in most cases) and would minimize the value of employee liberty and privacy. How similar would this policy be to current legal standards? The main change would be to grant employers greater liberty. Current restrictions on employers effectively prevent the use of information of this nature provided by the employee, by the fear of running afoul of the ADA—though the information has to be related to disability. For employees, it would create greater restrictions as there are no current prohibitions for employees revealing to their employers any disability, legal drug use, or enhancement. This policy option would also run counter to the moral convictions behind the value of privacy ensconced in the EPPA (which is not related to disability), though even here part of the EPPA restrictions are about the ineffectiveness of polygraph technology and not only about privacy.

Ethical concerns for this policy would mainly be about employee privacy and liberty, although there is also an important element of an employer’s right to choose employees who are most qualified and to be able to use technology that best determines that.

Permitted Use by Employer and Employee

This policy would allow Zach to use neurointerventions and use the results for employment purposes. Further, Alice would be allowed to use prescribed and non-prescribed neurointerventions, could tell Zach about them, and Zach could use that information any way he wished. This policy would maximize the value of employer flexibility and of employee liberty and would also likely be the most open and transparent. How similar would this be to current policy?

Current restrictions on employers effectively prevent the use of information of this nature provided by the employee because of potential ADA violations (though again, the information would have to be related to disability). Therefore, this could be an easing of the restrictions on the employer in that they could consider and even require the use of neurointerventions—provided they were strictly for enhancement and not to ameliorate a disability. As for employees, they would be explicitly allowed greater liberty in modifying themselves and making use of that information for employment purposes.

What would be different in this case is a change in the dynamics of the workplace, leading to managerial and ethical dilemmas that could involve concerns of fairness and coercion. The employer in this option cannot prohibit neurointerventions and employees may enhance and improve their performance. However, the openness means that employers make take neurointerventions into account in evaluations of the employees. A company could determine that the high evaluations of many employees were due to their enhancements and could choose to encourage all employees to enhance so that productivity would be increased company-wide—even subsidizing the enhancement. On the other hand, a company might look at enhanced employees as odd and think of their performance as due to the drugs rather than due to their own will and virtue—a kind of moral denigration of their performance achievement. This could end in either of two ways: the employer might consider the non-enhanced as virtuous, self-motivated, good employees who have made a choice to be “normal,” or could consider them to be unmotivated lower achievers. The attitudes of the employers would make a huge difference here. A company looking strictly at the bottom line would likely promote enhancement. A company wanting employees who are virtuous, loyal, good workers as a result of their innate character rather than external manipulation would likely look down on enhancement.

Ethical concerns for this policy would then be mainly about the “new normal”—ratcheting up expectations so that only the enhanced would be qualified or rewarded—or about potentially discriminating against a new class of employees—the enhanced.

Employers May Require Use and Disclosure, Employee May Be Required to Use and Disclose

This policy would allow Zach to mandate that Alice use neurointerventions for her job and would also require Alice to disclose any use of non-medical neurointerventions to Zach. This policy would maximize the value of employer liberty and minimize employee liberty and flexibility. How similar would this be to current policy?

This condition would be the most significant change from current policies (though not necessarily a radical change). In this situation, employers not only know about neurointerventions their employees are taking, but they may also explicitly require them to take such in order to keep their job. Further, employees may not only be required to take them, but also to reveal any they currently are using (again, with the caveat of disability). As discussed above, there are many situations in which employers can require certain medical or wearable technology use by employees and employees could not be qualified without using them (e.g., mandatory flu shots). Furthermore, most employees are under employment-at-will. If an employee does not wish to join in the enhancements, they do not need to. They may quit. This may put the employee in a difficult situation, but they neither have the right to that specific job nor do they have an obligation to keep that job. It depends on the warrant of the qualifications for the position. If the qualifications are justified, then the neurointervention may be necessary to meet those qualifications—just as requiring an employee to move to another city, take a flu shot, learn a language, attend a compliance seminar, or complete a degree may be necessary.

The real difference in this policy lies not primarily in formal law but in the substantive changes that actual practice might produce. In particular, the types of neurointerventions that become available and the extent to which they alter human ability could result in serious changes to our standards of qualifications and definitions of disability. What has counted historically as being qualified could change according to the new types and degrees of abilities that could be generated. An employer could create a job description that might not state that a successful applicant must use neurointerventions but instead require that the employee be able to perform physical or cognitive tasks that could only be performed using enhancements. Effectively, only enhanced people could qualify. The standard of what counts as being qualified for a job could rise to levels beyond that of currently normal people. We need not look far for a partial example—Silicon Valley (PRLog.org 2012).Footnote 12 Known for recruiting the best and brightest, it is easy to see an environment in which the average is no longer average. In order to compete, or even to be employed in some of these industries, one must show above average qualities. While, to the best of our knowledge, employers are not currently mandating enhancements, both employer and employee selection may have placed the average person out of the realm of employability at many companies and many employees have turned to enhancing drugs as common practice.

A similar “creep” effect could happen in terms of the concept of disability. Take Silicon Valley again: If the critical mass of employees begin to take neuroenhancements, would the level of the average employees’ cognitive abilities rise overall? Would it rise to the level to where what counts as an average and abled person now would count as below average or even disabled in the future (the “new abnormal”)? If the comparison is to peers, then perhaps they would have a disability. But even without a direct determination of disability, current law might suggest that they be covered under the ADA as the employer may be “regarding the applicant as if they have a disability.” Then, the next step—would neurointerventions become “reasonable accommodations” when the other employees are all enhanced? The policy implication may be that without them, these employees would become unqualified if they refused to take or are not offered an enhancement for the position—causing dizzying implications under the ADA.

Ethical concerns for this policy would then be about coercion (and the extent to which neurointerventions are consistent with previous qualification-heightening requirements such as college degrees for a job) and the degree to which employment culture becomes more competitive and hierarchical.

Conclusion

Neurointerventions in the workplace are likely to have a profound effect on culture, on business, and on the ethical and legal systems we have in place to govern them. Although in some ways—as we have seen in this discussion—what sometimes appear to be radical new twists brought on by technology are not that new. There are precedents for requiring the use of new technology for employment, precedents for employees altering themselves for purposes of work, and for complicated analyses of the competing interests of the parties involved. It is also true that many of the changes in the workplace are not brought about by brand new technologies, but by changes in moral and legal concepts of what should be protected and what should not—for example, the ongoing evolution of disability protections and the definition of disability. However, many of the neurointerventions on the horizon may present changes of such degree that they will create more serious changes—morally, legally, culturally, physically, cognitively—than previous technologies. Navigating the ethical terrain will require good empirical grounding in what neurointerventions can actually do and how various policies affect quality of life. Although there are many moral considerations to take into account, a valuable place to begin is to think of the possible policy options for governing neurointerventions in employment and how they balance interests—taking note of the fact that much of the impetus in using neurointerventions comes not from an exploitative big business bogeyman, but from individual workers who modify themselves for reasons of competition and accomplishment. The ethical problem then cannot be reduced to a simple corporate-control versus individual-liberty equation. The changes to culture in terms of competition, qualifications, the “new normal,” and the meaning of work in human lives have as much promise and peril from liberty as they do from exploitation.