Superpowers and the ADA

On this blog we have considered several ways in which superpowers, particularly innate superpowers, could be legally protected under the Constitution.  But there’s more to civil rights than the Constitution.  Congress and the state legislatures have also passed laws that go beyond the constitutional minimums.  One of the most important of these is the Americans with Disabilities Act.  Could the ADA be applied to superpowers?  As is so often the case, the answer is mixed.

I. The Scope of the ADA

The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.” 42 USC 12102(1)(A).  Perhaps equally importantly, a disability can also simply consist of “being regarded as having such an impairment.” 42 USC 12102(1)(C).  In other words, even if you aren’t actually impaired, it’s sufficient that you are discriminated against in violation of the ADA because you are regarded as being so impaired. (More on this later).  Both of these definitions depend heavily on the meaning of phrases like ‘major life activity.’  Luckily, the statute goes on to define those terms as well in 42 USC 12102(2)(A-B):

“[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working….[A] major life activity also includes the operation of a major bodily function….”

Furthermore, all of these terms are intended to be construed broadly:

“The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter….An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability….An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active…The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures…” 42 USC 12102(4)(A,C-D) and (E)(i).

Armed with a sense of the scope of the ADA, let’s analyze whether it might apply to innate superpowers.

II. What Superpowers Qualify?

Right off the bat we can see that, in general, voluntarily controlled superpowers generally will not qualify as disabilities.  It’s pretty hard for, say, the ability to fly to substantially limit a major life activity if you can simply choose not to use it.  But not all superpowers are voluntary, and whether the power is continuous (like Rogue’s pre-Messiah Complex, involuntary power) or only poorly controlled (like Bruce Banner’s transformation into the Hulk) doesn’t matter because an episodic impairment still counts.

Rogue’s original, involuntary, lethal power probably qualifies because touching others seems like a major life activity.  Certainly it is a common part of communication and many jobs (e.g., handshakes, receiving money from customers and returning change).  Bruce Banner’s power definitely qualifies as it also frequently interferes with work and communication (“Hulk smash!”).  Scott Summers’s power may also qualify.  A slightly less serious example along the same lines is Moist from Dr. Horrible’s Sing-Along Blog.

Although Hank McCoy’s and Kurt Wagner’s physical appearances might not be considered outright disabilities, they may be discriminated against because they are perceived as being impaired, which fits 12102(C).

III. The Protections of the ADA

The ADA offers many legal protections to disabled individuals.  In general, discrimination on the basis of disability is prohibited in employment, provision of public services, and in public accommodations and services provided by private entities.  For the purposes of this blog post we will focus on employment discrimination.

The general rule is given by 42 USC 12112(a):

No [employer] shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

Straightforward and complete.  However, there are important defenses to charges of discrimination.  Most important are when discrimination is “job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation” and when a qualification standard includes “a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.”  42 USC 12113(a,b).  Reasonable accommodation is a broad term, but it’s basically anything that isn’t an undue hardship (“an action requiring significant difficulty or expense”).

Since there are defenses, the natural question is “what can employers get away with?”

IV. Reasonable Accommodation and Undue Hardship

Two examples of powers that can almost certainly be reasonably accommodated are Rogue’s power and Cyclops’s power.  For most jobs, Rogue could simply be allowed to wear gloves and other appropriate clothing.  There are very few jobs for which Rogue could not be reasonably accommodated.  Similarly, Cyclops could be allowed to wear his glasses or other appropriate headgear.  He probably couldn’t be reasonably accommodated as an actor in a commercial for eyedrops or the like, but that’s about it.

Other cases are less clear.  Bruce Banner would probably not be so well protected.  His power would definitely raise the issue of “a direct threat to the health or safety of other individuals in the workplace.”  Any work environment that involved close interaction with other employees, customers, or other sources of stress would pose a significant challenge if it could not be made into a telecommute position.  In many cases there simply may be no reasonable accommodation for someone who turns into a rampaging giant at the drop of a hat.

V. Conclusion

Although most superpowers are not impairments, many superpowered individuals (particularly mutants in the Marvel universe) face discrimination despite the fact that they are not actually impaired.  In addition, there are some superpowers that do impair their possessors.  As a result, the ADA would protect many superpowered individuals from discrimination in several important areas of life.

23 responses to “Superpowers and the ADA

  1. Pingback: DYSPEPSIA GENERATION » Blog Archive » Superpowers and the ADA

  2. And now all I can picture is Black Bolt requesting a TTS device (certainly a reasonable accommodation in most jobs)… and ending up with the voice of Stephen Hawking.

  3. I think in the case of Dr. McCoy he has more than a perceived disability. At a whopping 6’8″ I can assure you that the World is not built with smaller people in mind. I frequently hit my head on doorways, have issues finding clothing and I’ve given up hope on being comfy in an airplane. Considering his superhuman proportions (and now feline characteristics) I would definitely take him out of perceived.

  4. There is a fine line between a superpower and a chronic medical condition.

  5. After the second time the Sentinels crash into your work place saying “MUTANT DETECTED” does it become reasonable to fire you for exuding giant robot attacking perfume?

  6. If I recall correctly, Hank McCoy has suffered direct workplace civil-rights discrimination, with co-workers refusing to work with him based simply on his being a mutant (despite the fact that his mutation was not much more than being big, strong, and agile). So his problem is more whether he wants to go through the legal system on that score.

    The Thing is an interesting case – he does have professional civilian skills (engineering and piloting) which are difficult to do in his powered state, since his hands are deformed then. He’s actually been shown with adaptive devices to help him do normal things like use a cell phone (since his fingers would normally be too large to properly press the buttons).

  7. I think with Marvel-Universe mutants, we’re arguably talking about an entire race (Homo sapiens superior) being subject to discrimination. So persecution of someone like Beast or Nightcrawler or a Morlock because of their appearance would fall under the Civil Rights Act rather than the ADA, I’d think. Although that would get into the question of whether a mutation can be defined as a racial trait rather than a unique anomaly. The mutants’ case under Civil Rights legislation would be helped if they chose a different term for themselves than “mutants,” which implies isolated aberrations. Although “Homo superior” is a pretty lousy alternative from a PR standpoint.

  8. I think it’s probably very difficult to defend the notion that Marvel-Universe mutants are a race (legally, anthropologically, etc.), primarily because new mutants regularly arise out of the non-mutant population. There are no ties of blood, unique shared culture, shared appearance or shared physical characteristics, and so on, that generally unite mutants; they just don’t look like a race in the way that humans are used to thinking of races.

    Now, being a mutant is clearly an inborn characteristic, and so under the 14th Amendment, laws affecting mutants differently from other people are presumably subject to strict scrutiny.

    • Actually, mutants are mutants because the possess the “X-gene” that codes for the possession of a mutant power. That alone should qualify them as a distinct “race” (as opposed to H Sapiens Sapiens, which has no X-gene).

      As for mutants arising out of the “non-mutant” population, we have to consider what is referred to as “activation”. The X-gene can lay dormant (like the gene for cancer, or diabetes, etc) until the body undergoes the right physiological changes for the gene to express itself. With most mutants, these changes occur sometime during puberty.

      Sometimes they do not, for some reason. These non-expressed mutants are sometimes called “latent mutants”. They may go their entire lives without ever even knowing they have powers if they are not exposed to a trigger of sufficient intensity or of the right type.

      This would include characters like the Hulk and the Fantastic Four. Their respective radiation exposures didn’t “give” them powers, it activated dormant powers they already possessed.

      The alternate theory involving Latents is that they possess the X-gene, but either lack any genes coding for a specific ability at all, or have a gene for a specialized form of adaptive healing factors. Under activation conditions, the HF would react to the nature of the threatening condition and reconfigure itself in some way to counter it.

      This is proffered as a potential explanation for Spider-Man. His X-gene reacted with the proteins in the spider’s venom and incorporated them into Peter’s genetic structure, which resulted in him gaining the abilities of a spider.

      • TiagoTiago

        I thought it was the other way around; he didn’t had the X-gene but had the genes for the powers, and then the special spider venon worked sorta like the X-gene would, activating his powers.

      • Greg Price

        I’ve always heard it put the way I put it. It would literally be a one in trillions chance he just happened to already have Spider-powers. A flexible “blank” X-factor is more likely.

        The other possibility only came up in very recent times relatively with the idea that there is some mystical something or another going on (the whole “Spider totem” thing). Personally, I find that unsatisfying and tend to ignore it.

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  10. Would Bruce Banner’s condition be considered “chronic”? and could he apply for Disability Insurance?

    • It would not be suggested that he apply.

      Such applications are seriously loaded with bureaucracy.

      Bureaucracy leads to frustration.

      Frustration leads to anger.

      Anger leads to SMASH!

  11. Note that Title VII protects against employment discrimination not only on the basis of race but on the basis of “color.” Depending on a court’s understanding of the word, Mr. McCoy and Mr. Wagner may be protected under that statute.

  12. Although you use the example of “actor in an eye drop commercial” I thought actors were NOT protected. It’s legal, for example, to specifically hire a black man to play Hoke in “Driving Miss Daisy.” If I’m right, that’s a bad example for you to use. Incidentally, I always understood that’s why the Disney theme parks hire “cast members” rather than staff. It allows them to control the appearance of the people in the parks.

    • Racial discrimination in hiring is different. That generally falls under Title VII of the Civil Rights Act of 1964, and the test for Title VII discrimination is different from the ADA. In Title VII cases discrimination is allowed if a particular race, color, religion, sex, or national origin is a bona fide occupational qualification, but this is a very narrow exception. Dothard v. Rawlinson, 433 U.S. 321, 332-33 (1977). While actors may fall under this exception, at least in some cases, the test for discrimination against the disabled is different. In fact, the BFOQ test has been explicitly held not to be the test for discrimination under the ADA. See, e.g., Bates v. United Parcel Service, 511 F.3d 974 (9th Cir. 2007). Assuming superpowered individuals do not fall under the protections of Title VII (e.g., if mutants are not held to be a race for purposes of the Civil Rights Act), then the ADA may still provide some protection against discrimination in hiring.

  13. Mr. Banner might require working conditions with extreme care to not induce any amount of stress or frustration; certainly not all types of jobs could be adapted, but i would think there are many more possibilities than then article seems to suggest.

    • “Extreme care to not induce any amount of stress or frustration” is a pretty good example of an unreasonable accommodation.

      • Is it so much more than building ramps, handrails, braille signs for bathrooms etc? Wasn’t a lady in the news a while ago that was allowed by law to take breaks to go masturbate ’cause of her condition?

      • Yes, “extreme care” is almost by definition unreasonable. Otherwise it would be “reasonable care not to induce stress or frustration.” But as the comics have shown, even reasonable care by others can still lead to Banner transforming into the Hulk and wreaking Havoc.

        Anyway, Banner’s condition poses “a direct threat to the health or safety of other individuals in the workplace.”

        As for your example: it was a Brazilian case and so isn’t really apropos.

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