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.
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.