Mutant Discrimination: GINA, Genetics and How Professor Xavier is Breaking the Law

This guest column was contributed by Dan Vorhaus, an attorney at Robinson, Bradshaw & Hinson, P.A. and Editor of the Genomics Law Report.

Previous posts here at Law and the Multiverse have discussed the status of mutants under several of our nation’s anti-discrimination laws, including the applicability of constitutional protections afforded by the Equal Protection and Due Process clauses of the 14th amendment and statutory protections afforded by the Americans with Disabilities Act (ADA).

There remains, however, one key piece of important anti-discrimination legislation that has yet to be considered in evaluating the legal protections afforded mutants under the law: the Genetic Information Nondiscrimination Act, or GINA.

I. GINA and Mutant Genetics: A Primer.

GINA represents a historic achievement. Enacted in 2008 after 13 years of debate, many have called it the “first civil rights bill of the 21st century.” Five years later it remains the first and only piece of federal legislation to specifically address the use and effects of genetic information.

Broadly speaking, GINA is divided into two parts. Title I of GINA prohibits health insurers from using genetic information to deny coverage or to set premiums or payment rates. Title II prohibits employers from requesting genetic information or using genetic information in hiring, firing and other employment-related decisions.

GINA’s unique focus on genetic information makes the law of particular relevance to mutants. “Mutants,” as we now know thanks to decades of research by devoted and largely off-panel comic book scientists, are individuals who possess at least one mutated copy of the so-called “X-Gene.” The gene appears to promote the development of superhuman powers and abilities, typically post-puberty.

While much remains unknown about the X-Gene’s structure and function, scientists specializing in mutant genetics have isolated its protein product(s) as evidenced by the deployment of mutant suppression drugs in X-Men: The Last Stand (the drug in question is derived from the mutant Leech). From this we can extrapolate that the location of the X-Gene in the Homo sapiens genome is known and, importantly, that mutations within the gene can be identified through genotyping or even targeted sequencing of the X-Gene itself.

With the identification of the X-Gene and the subsequent decline in cost of genomic sequencing technology, there are a number of scenarios in which a genetic test to “diagnose” a mutant at an early stage, particularly before he or she has developed any superhuman (and frequently super-destructive) abilities, might be desirable. But in light of GINA’s passage, are such genetic tests legal?

II. Mutant Discrimination in a Post-GINA World.

We start with a pair of scenarios in which genetic testing for the X-Gene might be of interest.

First, a health insurer could require applicants to submit to testing in an attempt to screen in individuals with beneficial mutations (e.g., those resulting in unique healing abilities) or screen out individuals with X-Gene mutations capable of generating catastrophic levels of claims exposure (e.g., as a result of an at-times-uncontrollable ability to rearrange matter), thereby helping to more accurately project the insurer’s exposure.

Second, an employer might use the X-Gene test to gain valuable insight about a prospective hire. For instance, a research laboratory might use the X-Gene diagnostic test to double-check that the reserved but well-qualified physicist it is considering for an open position won’t demolish the lab – and everyone and everything within it – if an experiment goes awry.

Prior to GINA’s passage, testing in either scenario would have at least been arguably permissible, although various other anti-discrimination laws, including those discussed in previous posts, might have served as the basis for an effective challenge. Post-GINA, however, the analysis is crystal clear: both of the above examples of X-Gene screening are illegal.

The text of the statute itself offers no ambiguity:

  • A health insurer “...shall not request, require, or purchase genetic information for underwriting purposes.” (§ 101)
  • It is unlawful for an employer “to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions or privileges of employment of the employee, because of genetic information with respect to the employee.” (§ 202)

 Although Congress did provide limited exceptions to the general prohibition on requesting and using genetic information in the insurance and employment contexts, none of the exceptions are targeted at mutants, tests specifically designed to test for X-Gene mutations or are otherwise applicable to the scenarios discussed above.

III. Professor Xavier and Pro-Mutant Genetic Discrimination

While GINA may operate to protect mutants from certain forms of genetic discrimination, we should not forget that the statute is crafted broadly and protects against the misuse of any individual’s genetic information. In other words, just as mutants are protected by GINA, so too are they bound by it.

Consider the case of Professor Xavier’s world-renowned school, variously referred to as “Xavier’s School for Gifted Youngsters” and the “Xavier Institute for Higher Learning.”

While little is known of Xavier’s closely-guarded school, it appears to satisfy the definition of an employer subject to Title II of GINA. (GINA applies to all private employers with 15 or more employees. With roughly a dozen identified faculty members, and likely additional faculty members and administrative and support staff on the payroll, Xavier’s school likely crosses the 15-person threshold.)

Xavier’s school also has an unbroken track record of employing mutants as faculty. While it may seem logical and even desirable to employ mutants in a school dedicated to the education and training of mutants, GINA prohibits the use of genetic information in hiring and other job-related decisions without exception. Even in situations where genetic information might appear to be a legitimate criterion for assessing fitness to perform a particular job, GINA forbids its use by an employer.

Of course, it is highly unlikely that Xavier requires prospective faculty members to submit to a traditional genetic test as a condition of their application and/or hiring. In addition to his well-known psionic powers which allow him to identify mutants using only his mind, many or all of the individuals applying to work at the school have manifest mutant powers. Nevertheless, GINA is clear that genetic information, however acquired, may not be used “in regard to hiring, discharge, compensation, terms, conditions, or privileges of employment.” 29 CFR § 1635.4. No matter how he comes by the information, if Xavier is indeed using genetic information in employment-related decisions, this would be a clear violation of GINA.

Since none of Xavier’s existing faculty members are likely to bring a discrimination claim, how might one arise? The most likely scenario: a gifted but non-mutant individual, perhaps one even possessed of other superpowers derived from, for example, an alien genesis or technological enhancements, seeks a position at Xavier’s school as an instructor but is turned away. Such an individual would be well-positioned to bring a successful genetic discrimination claim under GINA against Professor Xavier and his school. The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing Title II of GINA, provides detailed instructions for filing just such a charge.

As with any new piece of legislation, it will take some time before GINA’s full implications for both mutants and humans become clear. Final regulations for Title II of GINA were published in 2010, but public examples of GINA-in-action remain few and far between, and illustrate the many uncertainties and difficulties of enforcement.  For example, given the EEOC’s difficulty subpoenaing documents from Nestle in a recent enforcement action, one can only imagine the considerable challenges that would await the Commission in attempting to gather the evidence needed to successfully establish a claim of discrimination under GINA.

Nonetheless, the law of GINA is clear, and the coming years may require the Commission and other regulatory bodies to overcome those challenges in order to appropriately enforce GINA both for and against the mutant population. Count on Law and the Multiverse and the Genomics Law Report to continue to keep you apprised of all the latest in GINA, mutants and genetic discrimination law.

70 Responses to Mutant Discrimination: GINA, Genetics and How Professor Xavier is Breaking the Law

  1. Out of curiosity, how does GINA apply if the employer simply required such a genetic tests as part of the conditions for hiring? I occasionally read bits of the Whateley Universe fiction, where there is indeed a gene that is present in all mutants (although not everyone with said gene exhibits any abilities outside of the ordinary, and there are other origin stories), and one major company, Goodkind Industries, requires such testing for anyone in the upper levels of management. I see a parallel here with places like the NSA that require polygraph testing despite most companies being barred from using such testing as a basis for employment. Arguably, requiring testing wouldn’t change the situation, since a positive result would result in Title 2 of GINA coming into play, making it illegal to discriminate against their hiring, but it also means that the (potential) mutant status is now known.

  2. Now we all know why there are no lawsuits against Prof X. If you even think about thinking of bringing a suit then it is a case of ALL GLORY TO THE HYPNOTOAD and you just stop thinking about it.

  3. Christopher L. Bennett

    In fact, the Xavier school has had some staffers who weren’t mutants:

    Moira McTaggert, scientist who once worked undercover as school housekeeper: normal human
    Tom Corsi, gym teacher and Sharon Friedlander, school nurse: normal humans given superhuman strength by demonic enchantment
    Annie Ghazikhanian, school nurse: normal human (albeit with a mutant son enrolled in the school)
    Stevie Hunter, gym teacher: normal human

    The successor Jean Grey School in the current comics has some non-mutant staff members as well:

    Dr. Kavita Rao, staff physician: normal human
    Lockheed, alien races professor: alien dragon
    Doop, Introduction to Religion professor: entity of unknown origin
    Calvin “Mimic” Rankin, junior staff: human given superpowers through chemical accident
    Deathlok, security staffer: cyborg from alternate future

    So it is incorrect to say that either school has an “unbroken track record” of hiring only mutants. Now, one could make a case that mutants are disproportionately represented, but that could be a matter of qualification: if the goal is to hire staff qualified to understand the problems of young mutants and to teach them to defend themselves/the world against superpowered enemies, the most qualified instructors are mostly going to be mutants or other superbeings. As long as some non-mutants can meet those qualifications, then I don’t know if you could say that the school’s hiring practices are specifically based on genetics.

    • According to Captain America, Doop is apparently a genetic construct created by the Pentagon to win the Cold War. (See the X-Statix issues where they fought the Avengers for control of Doop’s primary brain.)

      Given that the Jean Grey School has hired several non-Mutant staff members, does that create an affirmative defense to a claim under GINA? Could the human teacher whose application was rejected by Kitty in favor of Storm make a claim? Could Deadpool make a claim? Wade’d probably be on shakier ground, given the fact that he is a wanted criminal and the school could point that out as the reason they didn’t hire him, but the human teacher seemed qualified.

    • You beat me to it, but there are more.

      Longshot is a ‘manufactured humanoid’ from Mojoworld and was briefly ‘employed’ at the school.

      Juggernaut worked as security at the school during World War Hulk, and his powers come from a mystic gem.

      I’m sure there are more, that’s just all I can think of right now.

    • Michael Tarleton

      As others have posted, you beat me to it. You could also argue that Xavier doesn’t seek out mutants, whether as faculty or as students, through genetic testing. He does it by using Cerebro, which keys in to the energy signatures from a manifested mutant ability – not the same thing. While GINA does prohibit discrimination based on genomic information, it doesn’t address phenotype information. In other words, GINA might prohibit, say, an NBA team from requiring a genetic test to see if a potential player has a gene for tallness. But it doesn’t prohibit NBA teams from hiring a tall player.

      • Martin Phipps

        What he said. And because you have to be a telepath to use cerebro it would be hard to prove that he was knowingly only hiring mutants.

        Magneto could be accused of discrimination (obviously) but he doesn’t do genetic testing either. I vaguely remember a story in which he tried to recruit the Submariner. He also tried to recruit Spiderman once, not knowing that Spiderman got his powers from a radioactive spider. The exchange went something like this.

        “I would like you to join your fellow mutants…”
        “I’m not a mutant.”
        “You’re not a mutant?”
        “No, I’m not.”
        “But your powers…?”
        “I’m… not… a… mutant.”

        Sure enough, Spiderman is not a mutant according to Cerebro. Nor can cerebro detect Captain America, the Hulk, etc. Presumably mutants have different “brain waves” from ordinary humans, even ordinary humans who have special powers.

        It isn’t completely clear that genetic testing would be able to detect if someone is a mutant because there is the question of “latent mutants” who never developed powers and thus don’t show up on cerebro. (Xavier can only detect mutants who have powers and in some versions they have to be using them to be detected.) I don’t think the general public cares about people who have the X-gene if they don’t have any powers.

        This agrees with what Michael said above: Xavier is detecting the trait of having mutant powers; he cannot detect whether or not somebody simply has the gene. Thus I believe what he is doing could be considered legal.

      • One small point, Martin. Sub-Mariner is a mutant, specifically “Marvel’s First and Mightiest Mutant,” as indicated in the title of his comic at one point. I don’t know if that’s been overturned since then, but it was true at one point.

      • Clifford Tunnell

        One correction. Spider-Man is actually a mutant, although one whose X-Gene remains latent – the radioactive spider bite further mutated his X-Gene, preventing it from manifesting. Otherwise he was slated to essentially turn into Man-Spider as seen in a What If? (For the record, the conceit was that peter was never bitten by the spider; his X-Gene manifests, mutating him into a spider monster while he and Mary-Jane meet with Professor Xavier about their child attending Xavier’s school.)

  4. Well, the good news is that Profesor Xavier is no longer in violation of GINA. The bad news is that the reason he’s no longer in violation is that he’s dead, blasted into atoms by Cyclops, who was channelling the raw power of a Marvel cross-over event (and Dark Phoenix).

    Wolverine and Kitty Pryde might be in violation though. They are the headmaster and headmistress, respectively, of “The Jean Grey School”, where young mutants now go to learn how to control their powers. In a recent issue, Kitty interviews applicants for a open spot on the faculty. Most of the applicants are one panel (or page) gags, such as Blade offering to teach vampire slaying; Sasquatch and Puck listing their only real qualification (besides Sasquatch’s Ph.D. in physics) as being Canadian; Spider-Man (whose civillian alter ego prior to Amazing Spider-Man #798 was once a licensed teacher) showing up to poke fun at Wolverine; and Deadpool showing up and refusing to leave. One of the applicants is a human teacher, who shows her New York state certification to Kitty, and then asks how exactly the X-Men are qualified to run a school. Needless to say, she gets shown the door. Could she bring an EEOC complaint, alleging that she wasn’t hired because she isn’t a mutant? Would the Jean Grey School have an affirmative defense that their staff includes three non-mutants, Deathlok (a cyborg assassin from a possible future), Doop (a genetic construct created by the Pentagon) and a Shi’ar warrior? Should Logan and Kitty hire Hawkeye as an archery instructor or Dr. Kavita Rao to work in the infirmary to avoid similar claims?

    • Um, she could probably bring the complaint( and was probably angling to bring one, considering she emphasised she was human) but it would fail. The reason she was turned away was because she openly questioned if the school was legal. Questioning if your future employer is legal is legitimate grounds for refusal to hire. Spider-Man applied as a joke, but Kitty probably would have hired him if it was a serious application. If Hawkeye (Either one) applied, they’d probably be accepted, although Clint may get more scrutiny. ( he’s a known spy; they could legitimately question if he was still a member of SHIELD) Also, the JGS school has a ready-built argument about why it’s staff is mostly mutants: they owe a duty of care to the students. they have to screen out potential anti-mutant bigots from the applicants, so it could be an accident of circumstance that the only serious human applicants thus far have been bigots or otherwise unsuitable

    • The Jean Grey School might want to reconsider Langkowski and Judd’s applications with an eye towards setting up a school in Canada, of course…

  5. First, a Skrull would probably be a better example than Superman, since we’re dealing with the Marvel universe; and Iron Man, rather than Batman.

    For the first case, there’s the problem (discussed previously on this blog) as to whether or not non-humans have standing as persons under US law. Further, there’s actually a couple non-humans who have been associated — Hepzibah, and I think Longshot. Similarly, I think there have been brief periods when the Juggernaut has been allied, and acted as a member of the faculty. Doctor Moira MacTaggert is a normal human member who may also have been on the staff.

    It’s been at least a decade since I was paying close attention to the Marvel U; but Professor X may be able to point to a couple token cases, to show the hiring is not quite genetically discriminatory — merely that carrying the X-gene is a factor greatly contributing to an expectation of success as a faculty member, though not determinative.

  6. Assuming Xavier really did want to only hire mutants, and required “the ability to manifest mutant powers” to be a job criteria (specifically mutant powers, not alien or cybernetics), why would this not be legal (even if skirting the edge of the law)? This would not technically be genetic information, only a demonstrable ability to perform the job adequately (just as interpreter would need to be able to speak a foreign language). Even if he used telepathy to determine this ability, wouldn’t that be just another sense, no different than sight, as long as he was specifically checking only for the ability to “do the job” instead of actual genetic makeup?
    An example in a completely different field might be hiring female strippers. If a man applied for the job, he would no doubt be turned away based on gender (which is genetically determined). The employer would not need to use genetic tests to determine this, simply looking at the applicant would be enough (just as Xavier’s more unusual senses would be enough).

  7. I am perhaps confused, as where I live the burden is on the employer to show that they didn’t discriminate on the basis of the protected attribute, but how is anyone supposed to prove that they were discriminated against based on their genes? Even without someone having a person’s genome mapped for them, some “mutations” are fairly obvious and are colloquially linked to less obvious attributes that could easily be taken into account. …

  8. Thanks for all the great feedback already. While it’s clearly the case that Professor Xavier has not hired exclusively mutants – and apologies for the use of “unbroken track record” – remember that Title II of GINA prohibits the use of genetic information in all hiring practices by covered employers, even where it is not used in a discriminatory manner and even if not used in all instances.

    Indeed, GINA is frequently misconstrued as a prohibition on misuse when, in reality, it operates to prohibit nearly all uses. So the simple fact of having employed on the faculty several (or even many) non-mutants does not, I fear, get Professor Xavier into the clear.

    • Maybe I am missing something, but this law really sounds to me like it is referring to using genetic testing for hiring decisions, not to using genetically-determined attributes. As long as Xavier does not actually test a person’s DNA, couldn’t he hire people based on their abilities? The mutant faculty have abilities that are easily demonstrated without the need for genetic tests. Having mutant abilities seems no different than other genetically-determined attributes such as gender or height (which can be used in determining aptitude for a job).

      • Ken Arromdee

        When has Xavier hired people based on their abilities, though? It’s not like he has a position that can only be filled by a shapeshifter or a telepath and then goes looking for people with such powers to fill it (and would have accepted a non-mutant telepath if a qualified one showed up). There are so many different kinds of mutant powers that the idea that he hires mutants because he specifically needs someone with the power doesn’t really stand up to scrutiny. Gender and height don’t have this problem.

      • Melanie Koleini

        GINA does not make it automatically illegal to use a specific trait in hiring decisions just because it has a genetic component. Every single physical trait has both a genetic and environmental component.

        An airline pilot displaying the symptoms of Huntington’s disease WILL NOT be hired by an airline. It doesn’t matter that the disease is genetic, if the pilot has it, they will not be allowed to fly if their boss finds out. If the pilot is asymptotic, he might win a discrimination suit but once he has serous symptoms, no job and he will lose any lawsuit that goes to court.

        Xavier might not be looking for specific mutant abilities when hireling, but among other things, I bet he is looking for someone who can relate to the students and fit in to the ‘unique culture’ of the school. If a applicant has a life experience and a eclectic skill set similar to a mutant, I bet Xavier might hire them.

      • Ken Arromdee

        Under an ordinary anti-discrimination law, I don’t think it would be okay to say “I’m not requiring that applicants be white. I’m just requiring that applicants have a life experience and shared culture similar to a white person”. Or better yet, “I’m just requiring that applicants be those who my customers will treat like they would treat a white person”.

        I think any court would see that as a transparent subterfuge for discrimination.

        Having a disease is a physical trait. Having a specific power like telekinesis is. Even “having powers” is a physical trait. “Being able to fit in among mutants” isn’t a physical trait, any more than “having customers treat you like a white person” is.

      • Melanie Koleini

        Ken, ‘fitting in’ among mutants may not be a physical trait, but being able to interact effectively with students and other teachers is an important attribute of the job of teacher. You may be right that most anti-discrimination laws might discourage requiring a minority to ‘act like’ the majority to get the job but (as a non-lawyer) I think GINA is different in a couple of ways.

        First, I don’t think it actually creates a new protected class. Every human in existence has genetic variation, so every human on the planet could be covered under GINA. GINA says you can’t use genetic information to make employment decisions. It doesn’t say you can’t use other factors that correlate strongly with genetic information.

        Second, in the X-Men world, I don’t think non-mutants count as a protected class. When Gallaudet University picked a new chancellor, they hired a deaf person. No hearing person had a realistic chance of getting the job no matter how qualified they were. Nobody sued them despite the fact there was a clear appearance that hearing people were being discriminated against.

  9. …we should not forget that the statute is crafted broadly and protects against the misuse of any individual’s genetic information…

    When you say this you mean only in terms of employment and insurance, right? It’s not so broad as to protect the faculty from discrimination when they try to rent an apartment near campus, right?

    • Melanie Koleini

      GINA doesn’t even apply to all types of insurance. At the moment, it is legal to deny someone long-term care insurance based on genetic testing. I’m not sure if it applies to life insurance either.

  10. It seems like this would be complicated by the fact that the X-men have been declared nonhuman by court decision. Real law doesn’t have any provision for nonhuman sapients suing and being sued, and I doubt Marvel courts do either. Is it even possible to sue someone that the court doesn’t recognize as a human?

    And how would GINA apply with nonhumans?

    • Melanie Koleini

      In the real world mutants would almost certainly be considered human so any court decision declaring them not human implies a very different legal system.
      I assume that happened in the X-Men Universe. Do you know what fictional law was used to justify that ruling? Also, given the number of intelligent extraterrestrials in comics, do you know of any (fictional) laws/court decisions regarding the status of non-human people?

      • That was a real court (Toy Biz v. U.S.). There was a dispute about tariff rates, and it ended up hinging on whether action figures were “toys” or “dolls.” The holding was that the characters represented are not human, and therefore the toys get the lower tariff rate. I imagine it would have gone differently if the X-Men could come in and testify, but apparently they don’t let fictional characters do that.

      • Melanie Koleini

        I’d forgotten about the toy tariff ruling. In my memory, I think the court based their decision on action figure appearance only. That would mean Beast wouldn’t be considered human but Scot Summers would be. It would also mean a wolfman wouldn’t count as human but the very same person in human form would count as human. In the actual legal case, I’d remembered thinking tariffs were too complicated and everyone would be better off if congress simplified the law.

        I suspect if the real court case had implications beyond the classification of inanimate property, someone would have applied that ruling all the way to the Supreme Court.

  11. Terry Washington

    Whether super powered people have “standing” in US law is unclear ( be they zombies, werewolves and other super humanly powered entities like vampires those whose powers are “naturally based” like mutants, mythologically based creatues such Thor, Hercules and the Valkyrie, or enhanced individuals like Captain America, Daredevil, Spider-Man, Hulk or the Fantastic Four). I remember an Avengers story in which the Falocn was added to the group just to satisfy the “affirmative action” legislation-much to the displeasure of the other group members- NOT because he was black but because he was added to satisfy a “quote”. It could be argued that the X-Men is an “elite group” like the Avengers, US Marine Corps/Navy SEALs but the racist ravages of the Third Reich have deservedly given “elitism” arguably when tinged with racism( and mutants arguably qualify as a race) a bad name!

  12. The logic that Xavier would be in violation of GINA for considering whether someone has mutant powers in hiring decisions, even if no genetic test is performed at any time, just make much sense to me. By that logic a health insurer would not be allowed to request the gender of an applicant, since gender is genetic information. Or, indeed, any physical or mental characteristic or disease with a genetic basis would be off limits – really, it would arguably be illegal to base hiring decisions off of any personal attributes at all. It seems to me that there has to be a distinction made between basing decisions off of someone’s genetic structure, and basing decisions off of their physical makeup. I don’t think Professor X hires based on whether people have the X gene, only whether they seem to possess innate mutant powers.

    • SEX is genetic, gender is social. It’s an important distinction.

    • Professor X hires non-mutants. The director of the mutant research center is not a mutant. (This statement void if she’s been retconned into mutanthood since I stopped reading x-comics.)

    • Hiring people based on whether they have powers is hiring based on their physical makeup.

      Hiring people “based on whether they have mutant powers” really isn’t. It’s a combination of a physical test (having powers) and a genetic test (whether those powers come from being a mutant).

      (It’s true that mutants are detectable by Cerebro, but the fact that a genetic test is done using a machine doesn’t mean it’s not a genetic test. A test of any type always has a physical outcome, whether it’s a little light on Cerebro or a colored spot on a piece of paper containing DNA-related chemicals.)

      • Melanie Koleini

        I strongly disagree that Cerebro is conducting a genetic test. If someone looks me in the eyes they can see my eye color. Knowing what my eyes look like, they can guess with a high degree of accuracy what eye color genes I have. This does not mean they have done a genetic test.

      • Knowing what my eyes look like, they can guess with a high degree of accuracy what eye color genes I have. This does not mean they have done a genetic test.

        To be fair, even doing “a genetic test” (e.g. gene sequencing) still only means that the person can guess with a high degree of accuracy what eye color genes you have, just a higher degree than they could merely by observing your eyes.

        What’s more relevant is the definition of “genetic information” under the law. Genetic information is defined in 42 U.S.C. § 300gg as:

        The term “genetic information” means, with respect to any individual, information about—
        (i) such individual’s genetic tests,
        (ii) the genetic tests of family members of such individual, and
        (iii) the manifestation of a disease or disorder in family members of such individual.

        “Genetic tests” are in turn defined narrowly as:

        The term “genetic test” means an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes

        and specifically excludes:

        (i) an analysis of proteins or metabolites that does not detect genotypes, mutations, or chromosomal changes; or
        (ii) an analysis of proteins or metabolites that is directly related to a manifested disease, disorder, or pathological condition that could reasonably be detected by a health care professional with appropriate training and expertise in the field of medicine involved.

        Since Professor X is not using information about the individual’s family, the only question is whether Cerebro constitutes a genetic test under GINA. That is, whether it is “an analysis of human DNA … that detects … mutations.”

        I tend to defer to the expert’s opinion on this, but I’d like to see a more detailed explanation for his conclusion, as I’ll admit that the plain language of the statute suggests to me that the law is aimed at tests that directly analyze DNA, RNA, etc and not tests that merely come to similar conclusions as a more direct test could (hence the second exception for conditions “that could reasonably be detected by a health care professional with appropriate training and expertise in the field of medicine involved”).

      • Ken Arromdee

        I think that courts are good at figuring out pretexts. Cerebro is a genetic test because the only reason anyone would want to use it (on someone already known to have powers) is to figure out whether they have mutant genes.

        If someone does a genetic test that checks to see if their tissue produces a spot on a piece of paper soaked with chemicals, no court will let them say “we’re not testing for genes, we are testing to see if someone can perform the physical task ‘make a spot appear on this piece of paper'”. Although the task is, in fact, physical, it is only useful for the purpose of checking if someone has the gene, so checking to see if someone can perform this physical task is just a roundabout way of checking their genes. Likewise, being able to register on Cerebro has no usefulness beyond checking to see if someone is a mutant, so checking to see if someone registers on Cerebro is just a roundabout way of checking for mutant genes.

        You can hire someone to teach. You can hire someone to shoot energy blasts. Nobody hires anyone “to make spots appear on paper” or “to make Cerebro register”. That is not checking to see if someone can perform a job, that’s a gene test.

      • Melanie Koleini

        Cerebro is not a pretext for detecting the X gene. First, (I think) it will only detect a mutant if they have an active power. So if they have latent X gene, Cerebro won’t detect them.

        Second, (I think) Cerbro works by some measurement of brain waves. Someone could produce the same brain wave patterns as a ‘mutant’ without having an X-gene at all. Unless every single person who Cerebro has ever identified is tested for the X-gene (or at least a large sample), we can’t really know.

        If a hematologist looks at a blood sample under a microscope and the sees crescent shaped blood cells, they can be reasonably sure the sample comes from a person with the gene for sickle cell anemia. But they did not perform a genetic test. (Assuming there wasn’t a different law that applies) The health insurer could use the results of the blood test to determine health insurance eligibility. GINA would not apply.

      • Ken Arromdee

        it will only detect a mutant if they have an active power.

        That just means it’s a combination of a physical test (test for active power) and a genetic test (test for mutancy).

        Second, (I think) Cerbro works by some measurement of brain waves. Someone could produce the same brain wave patterns as a ‘mutant’ without having an X-gene at all.

        The only reason Professor X uses Cerebro in the first place is that he wants to find mutants. He’s not really interested with someone with a particular brain wave; he’s interested in mutants, and cares about the brain wave only insofar as it points to mutants. If he discovered that a substantial number of non-mutants were being detected by Cerebro, he would try to find something that detects only mutants, and if he couldn’t, he’d treat these results as undesired outcomes of an imperfect test and do what he could to exclude them.

        In the case of someone testing for sickle cell anemia, the disease is actually something that needs to be known for reasons other than just finding out what genes someone has. With it, the gene is only important because it produces the physical effects. In the case of Cerebro, the physical effect is only important because it shows what the genes are.

      • Melanie Koleini

        Let’s say I have a foundation created specifically to advance the interests of people with naturally occurring red hair. Of all the applicants that apply for a foundation job, the one with the reddest hair will get it. No dye jobs are allowed so submitting a hair sample is required as a condition of employment. The hair is tested for dyes and bleaches AND for the specific proteins that naturally produce the red color. I have not performed any genetic testing. My hiring standards might run aloofly of another anti-discrimination law, but I have not violated GINA.

      • Melanie Koleini

        Ken, you are confusing causality. Professor X is interested in finding Mutants. The professor is only interested in the X gene because people who have it, are Mutants. If Mutants were instead caused by exposure to Kryptonite, he’d still want to find Mutants. The class of people the Professor is interested in (Mutants) can be detected through genetic testing but they can also be identified by their brain waves.

      • In the movies, Xavier was able to detect mutants very easily but in the comics and cartoons there were limitations: in the comics Xavier couldn’t detect mutants until they reached puberty and therefore started to have powers and in the X-Men Evolution cartoon Xavier couldn’t detect a mutant until the mutant actually used his or her power. There’s also the issue of range: Cerebro extends the range of Xavier’s telepathy presumably so that he could reach every mind on Earth; presumably Xavier could detect whether or not somebody was a mutant without using Cerebro if the mutant was in the same room. (For example, when he knew that Hank McCoy was a mutant in X-Men: First Class.)

        I don’t know if there is any example in the comics, cartoons or movies of a “false positive”: that is to say if Xavier thinks you are a mutant because you have the brain waves of a mutant then you are a mutant. There’s also the mutant hunting Sentinels who were able to “detect mutants” so presumably they were able to detect brain waves, unless there is some other test that can be performed at a distance. One storyline in X-Factor had the Master Mold Sentinel convinced that all humans were mutants because he found that they all carried the X-gene. The implication seemed to be that all of humanity were latent mutants carrying the X-gene but only those who we consider mutants had the X-gene switched on were identified as mutants. In that case, it isn’t clear if a genetic test would identify someone as a mutant.

        The analogy may be made with homosexuality: homosexuals insist they don’t choose to be gay and as a straight man I believe them because I didn’t choose to be straight either, I just am. But so far there isn’t any genetic test that distinguishes a gay person from a straight person and, while it is true that a gay man with a twin is likely to have a gay twin, a gay man could have a twin brother who is straight. Twin brothers are presumably genetically identical so if homosexuality is a genetic trait one brother would have to have the trait (homosexuality) turned on with the other brother having the trait turned off. A genetic test would not be able to determine which brother was gay if both brothers had the same genes.

      • Ken Arromdee

        Professor X is interested in finding Mutants. The professor is only interested in the X gene because people who have it, are Mutants. If Mutants were instead caused by exposure to Kryptonite, he’d still want to find Mutants.

        That’s an ingenious argument, but I think it still fails. Yes, if Mutant was defined in some way other than by reference to genes, then it would be okay. But Professor X is interested in Mutants specifically, and is not interested in non-mutant powered people. And the only difference between Mutants and non-mutant powered people is the genes (or the brainwaves that indicate them). Therefore “genes” must be part of his definition of “Mutant”.

      • Melanie Koleini

        If I want to research people with sickle cell anemia, I can identify them with a blood test or a genetic test. If they don’t have the sickle cell gene, then they don’t have sickle cell anemia but if I identify them with the blood test only, I am not performing a genetic test even though everyone I am interested in will have the sickle cell gene. If the professor found a person who had every characteristic of a Mutant but who did not have the X-gene, he would probably consider them a Mutant.
        GINA doesn’t work the way most anti-discrimination laws work. It is both more general (it applies to all people not just a protected class) and more specific (it doesn’t protect people because they have a trait, it says employers can’t use information collected in a specific way).
        Under GINA, if I want to hire someone with type AB- blood, I can do a blood test and find out the applicants blood type. That would be allowed. I could not ask what the parents’ blood types were or do a genetic test to find out if they have the genes for type AB- blood. Functionally, there is no practical difference between testing for the antigens found in type AB- blood and genotyping the person. With extremely few exceptions, everyone with type AB- blood will have the same genotype. But GINA doesn’t protect people because they have a genetically determined trait. It doesn’t protect people from employers using trivial criteria to determine employment offers. Other laws might prevent this but not GINA. What GINA does is try to say health insurers and employers can’t use a specific method (genetic testing) to collect information about potential clients/employees.

      • Melanie Koleini

        Ken, How about this:
        Scenario 1:
        Pretty much everybody believes that all Mutants have the X-gene. BUT no one has identified this gene yet. Professor X believes that every Mutant has the same allele of this theoretical gene, but he doesn’t know where it is in the genome or its genetic sequence. He identifies Mutants via their unique brain waves. In this circumstance, is the professor performing a genetic test to identify Mutants? (I think he is not.)
        Scenario 2:
        Professor X does EXACTLY the same technique as in the case above to identify Mutants. But scientists have now identified the X gene. The Professor is not genotyping the people he identifies but he strongly suspects they all have the x gene. Is the professor doing a genetic test now? I don’t think so, but if you do, then why is he doing a genetic test now when he wasn’t in scenario 1?
        Alternatively, if you think both scenarios involve genetic testing, please explain how you can use a genetic test to identify someone when you don’t know what you are looking for?

      • Ken Arromdee

        Scenario 1:
        Pretty much everybody believes that all Mutants have the X-gene. BUT no one has identified this gene yet.

        This scenario is impossible. If someone believes that all Mutants have the X-gene, and that is a conclusion about Mutants and not part of the definition, then they can’t have a definition of “Mutant” in the first place. There’s nothing *else* they could define “Mutant” as other than having the X-gene, or some combination such as “having powers and having the X-gene”.

      • Melanie Koleini

        Ken,
        I’ve finial figured out the bases of out argument. We have a different definition of ‘Mutant’ (as defined in the X-Men Universe. I don’t follow the comic closely, so forgive me if I get the back story wrong.
        Mutants first emerged around World War II. They were identifiable as a new class of people (called Mutants) before anyone knew what was causing them. I know this is comic book science but just from a logical stand point, how would you figure out IF a syndrome is ‘caused’ by a gene if you can’t define it apart from the gene?
        For a real world example: Sickle cell anemia is a genetically determined. It’s been around for hundreds of years. It was diagnosable BEFOERE the gene that cased it was identified. Substitute ‘sickle cell anemia’ for ‘Mutant’ in scenario 1. Sickle cell is diagnosed by a blood test rather than brain waves but other than that, scenario 1 was true for the disorder.

      • Ken Arromdee

        Okay, you’ve partly convinced me. It is true that people in the MU suddenly started getting powers, they were called “mutants”, and this was before anyone identified a genetic cause (though some people guessed at a genetic cause). So this does show that “mutant” has a definition independent of genes.

        Yet at the same time it really shouldn’t. Why would the MU consider someone who gained powers from a radioactive spider to be in a completely different category from someone who suddenly gained powers from an unknown source? Without using genes. there’s really no reasonable way to put those in separate categories, especially since for all you know the other guy also got bit by a radioactive spider and didn’t notice it.

      • Terry Washington

        I think the generally accepted concept of a “mutant” in the Marvel Universe is somebody BORN with the capacity for their powers(which appear around puberty/adolescence)-which quickly elimates Spider-Man, Captain America, Daredevil, the Hulk, the Fantastic Four. Mutancy is as immutable as skin colour, sexual orientation(hint, hint!), biological gender( in fact it may be MORE immutable than either skin or eye colour,or gender in asmuch as you can wear contact lenses or in the case of especially fair skinned people of colour such as actresses Lonette McKee or Vanessa Williams, skin lightening cream or even have a sex change)but a mutant ALWAYS retains his or her specific powers even if he or she chooses not to use them!

      • I believe the ‘proper’ definition of mutant is a person who is born to two fully human parents, who spontaneously manifests non-human abilities/characteristics. That rules Spiderman out, as his powers had an external cause. It rules out the aliens, the gods, the science experiments gone wrong, the powers bestowed by some higher power, magic, gadgets… Does that still leave anyone who isn’t considered a mutant in Marvel?

        As for why the public knows the Spiderman isn’t a mutant, some people do assume that, and he’s quite adamant that he isn’t. Not that there’s anything wrong with that.

      • Ken Arromdee

        If a mutant was defined as someone born with the capacity for powers, how in the world would you know that someone was born with the capacity for them? Without being able to look at their genes, all you know is that someone just suddenly got powers some day. You don’t know whether it’s because he was born with the capacity or whether it’s because the cosmic rays were especially fierce around his house that day.

      • In the Marvel Universe, the term “Mutant” is a very specific, technical term. It refers to Homo Sapiens Superior, an offshoot of Homo Sapiens (and of Homo Sapiens Mermanus, aka Atlanteans) who have an active X-gene. To understand why Spider-Man or the Hulk are not mutants, while Wolverine and Cyclops are, it is essential to know a bit about the Eternals, a group of super-beings created by Jack Kirby. The Eternals and their enemies the Deviants were early Homo Sapiens that were experimented on by aliens known as the Celestials. The Celestials are the polar opposite of the Watchers: where the Watchers never interfere in the affairs of other species, the Celestials are a group of busybodies who decided to “promote” the evolution of other life forms. The Skrulls, for example, received their ability to shapechange from Celestial genetic tinkering.

        The Celestials created two sub-groups of Homo Sapiens, the Eternals, who would not look out of place on New Genesis, and the Deviants, who look like the monsters Kirby created for Marvel horror comics in the late 1950’s. The Celestials also manipulated human DNA to allow the X-gene to form. In some humans like Peter Parker, the X-gene was latent until it was triggered by an outside element (radioactive spider venom). In others, like mutants, the X-gene was active at conception, though when the traits granted by the gene manifested might vary. The first human to be born with an active X-gene was a nomad (either Canaanite or Hitite) born in Egypt named En Sabah Nur, aka Apocalypse. It has been implied that the reason his X-gene was active was his mother’s exposure to radiation from the engines of Rama Tut’s time machine.

        Ever since Apocalypse’s birth, mutants began to appear infrequently, until the 20th century. At some point in the early 20th century, possibly due to the discovery of elements like radium, children with active X-genes began to appear more frequently. After the development of the atomic bombs and atomic energy, mutants became much more numerous. Then the Scarlet Witch had a Brian Michael Bendis-inspired hissy fit and used Chaos Magic to make all but a few hundred mutants lose their X-genes. (She didn’t turn off the X-genes, she actual rewrote the DNA of millions with three words.) At the end of all the excitement of AvX, Hope, a very powerful mutant, restored the X-gene to the mutants who had lost it. (And in a sign that the writers don’t know good symbolism when its jumping up and down in front of them, they didn’t have Hope’s counter-incantation be “Let there be mutants!”)

        Cerebro, Cerebra and the Sentinels are all machines that can detect mutants. They are apparently able to detect an active X-gene and differentiate X-genes active at conception (mutants) and latent X-genes activated by cosmic rays, gamma radiation, magic spiders or super-soldier serums. The actual way that Cerebro and Cerebra work is rather vague; apparently telepaths can distinguish between mutants and non-mutants by analyzing brain waves, and Cerebro/Cerebra augment telepaths in that manner. Sentinels can, um, er, detect midi-chlorians? Its never been adequately explained how Sentinels function, and they have made at least one false positive (the Falcon was misidentified as a mutant by a Sentinel; his ability to command birds came from the Cosmic Cube). Professor X did not invent Cerebro to hire faculty; he invented it to seek out mutant students. He was the sole faculty member in the early years. Which makes his leering at Jean Grey even creepier.

      • Ken Arromdee

        Leor: I know the definition of a Marvel mutant.

        The trouble is that without the ability to detect genes, or its equivalent. there’s no way to know whether anyone fits that definition. How do you know if someone was born with the ability to spontaneously gain powers, or whether they were affected by a local cosmic ray burst or some other origin-causing event that nobody happened to notice?

        As for Professor X leering at Jean, Professor X 1) was a prodigy (comic book characters routinely gain advanced degrees at impossibly young ages) and 2) looked older than his actual age because of his baldness. The age gap between him and Jean is only big because decades of retconning put more and more events in his history, thus making him older in that story than he originally was supposed to be.

    • Apocalypse was not the first mutant. His name, En Sabah Nur, translates as “The First One” (in the fictional language of a long-dead desert tribe) because the man who adopted him thought he was the first of a new breed of godlike men, but there are several mutants older than him, most notably Selene (who is 10,000 years old, twice his age), and probably several mutants before and after her who lived and died on normal human lifespans. The very first mutant to ever live has not, to my mind, ever been shown in the comics.

      As to Xavier using Cerebro only to find mutants, that is wrong. Cerebro is used to safely utilise his full telepathic potential (which is otherwise limited by his body- he would probably kill himself trying to use that potential without it) for a variety of effects. In general, he probably uses it mainly to find specific individuals, or to remain in contact with his X-Men when they are on missions. Granted, finding mutants may have been its original intent, but he built it years before GINA was even conceived, and it has long evolved beyond that purpose .

      Its legally dubious qualities have less to do with that and more to do with the issues it raises about invasion of privacy, espionage and assassination, and the fact that it has been used for all three (can’t remember if Xavier himself has ever killed somebody with it, but its a potential use- he’s definitely guilty of the first two though).

  13. Hypothetically, we could imagine a situation in which Magneto became the ruler of Genosha and he declared war against the United States. How might that affect the legal standing of mutants in the United States? If it had happened back in the forties then I’m sure mutants would have been rounded up, just as people of Japanese descent (yet, strangely enough, not people of German or Italian descent) were rounded up and placed in camps during World War II.

    • Magneto did become ruler of Genosha. He did threaten the US and other nations. The US didn’t lock up the X-Men in camps, but there were tensions that might have gotten worse, if the High Evolutionary had not stepped in.

      Then Cassandra Nova solved the problem by exterminating the citizens of Genosha with Sentinels.

  14. Does Professor X actually care whether those applicants who exhibit powers gain them specifically from being a mutant, though? Everyone’s mentioned all the superpowered non-mutants he’s employed, so it would seem clear his requirement is probably more that that an applicant for a position possess some kind of abnormal ability regardless of its origin.

    Magneto might care about Spider-Man’s genotype, but Professor X wouldn’t because the net result is the same– a person who can understand having powers that put you in a unique position vis a vis other humans and who can assist young people with such powers in dealing with that fact. And of course, the above requirement isn’t, on its face, discriminatory against non-superpowered individuals. Someone like Tony Stark, who isn’t a mutant nor innately superpowered, but is a massive outlier as far as intellect goes, would almost certainly be hired if he chose to apply because his own experience as a child prodigy would make him able to deal with mutant children experiencing some similar if also quite different. Likewise, a psychologist or psychiatrist who chose to specialize in treating mutants and specifically mutant children might have an edge even against a mutant psychic for a counseling position if said mutant psychic didn’t actually have a degree or similar experience to the non-mutant candidate. Though it seems like Professor X likes to keep a pretty firm near monopoly on counseling, it may be a non-issue. So it doesn’t seem like the hiring standard is really, “Must have X gene” so much as “must have ability empathize and handle the unique needs of mutant students,” which, yes, lends the actually superpowered an edge, but pretty clearly does not require actually possessing the X Gene.

    That said, I’m wondering, would there be any kind of liability exemption here? It’s clear that Xavier’s School is full of teenage mutants just learning to control their powers, some of which are on such a scale they could threaten the safety of the entire planet never mind the school, so is it even responsible to offer certain positions to completely normal people who couldn’t hope to defend themselves should something get out of hand? Again, the ability to defend oneself in the event of an emergency may not require an actual mutant, but certainly it could be said to require superpowers or a prosthesis serving a similar purpose (e.g. an Iron Man suit). Would hiring somebody who would simply be toast if things went pear-shaped be a reason to not hire them? Or would Xavier be required to contract with someone like Tony Stark to provide his instructors with protective equipment?

    • That issue doesn’t apply strictly to non-mutants only. If a mutant whose power is to explode suddenly loses control of his abilities, Beast and Cyclops aren’t going to be any less dead than any random human teacher they happen to employ.

      I should add that other superhero groups also have human staff on the premises- in the Mark Millar story Wolverine: Enemy of the State, the Baxter Building was evacuated of its human staff because the Fantastic Four feared (rightly, as it happens) an attack from a brainwashed Wolverine. The fact that Doctor Doom or a bunch of other villains often attack the building as well and usually without warning wasn’t brought up.

    • That issue doesn’t apply strictly to non-mutants only. If a mutant whose power is to explode suddenly loses control of his abilities, Beast and Cyclops aren’t going to be any less dead than any random human teacher they happen to employ.

      I should add that other superhero groups also sometimes have human staff on the premises- in the Mark Millar story Wolverine: Enemy of the State, the Baxter Building was evacuated of its human employees because the Fantastic Four feared (rightly, as it happens) an attack from a brainwashed Wolverine. The fact that Doctor Doom or a bunch of other villains often attack the building as well and usually without warning wasn’t brought up (though Reed probably shouldn’t get away with opening up portals to hostile dimensions in the middle of a major city either), but they are evidently still allowed to hire people.

  15. In the toy tariff case, did the decison claim that the X-men were not human or that they weren’t depictions of real-life people? If it is the latter you can still argue mutants are human.

    • Melanie Koleini

      In layman’s terms, the tariff case came down to whether or not a particular action figure was legally a ‘doll’ or a ‘toy’ (which are taxed at different rates).
      A human figure in a costume (like Superman or a ninja ) counted as a ‘doll’. Less human looking figures (like Beast or the Hulk) counted as a toy. I don’t know if Robocop counted as a doll or toy. I think in most cases the determination was made by an administrator, the lawsuit was mostly about the rules used to determine the classification.

  16. Dan,

    Interesting analysis, but I fail to see how Professor Xavier ever violated GINA. As you cite it, the statute itself prohibits an employer from “fail[ing] or refus[ing] to hire, or . . . discharg[ing] any employee . . . because of genetic information.” See section 202. Thus, Prof. Xavier would be in violation of the statute if he refused to hire a non-mutant for a position at his school, not by hiring mutants. Your hypothetical plaintiff remains just that, however–hypothetical. Do we have an example of a non-mutant applying for a position and being turned down on account of his/her genetic status? If not, then not only is there no one with standing to challenge Prof. Xavier’s decisions, but there is no violation at all, because there has been no discriminatory hiring practice. In fact, is there even one documented case of a person being denied a teaching position at the school? If Xavier has accepted all applicants, against whom has he discriminated?

    The citation to regulations forbidding any consideration of genetic material whatsoever present a different matter, and without getting into Chevron deference or similar such doctrines, a regulation ain’t a statute. (I suppose one could argue that because the school is secretive, he is carefully winnowing the potential applicant pool so that only hand-picked mutants ever submit an application. That said, if there is a winnowing process that results in only the best potential teachers getting jobs at the school, one could argue that (1) teaching ability and (2) knowledge of the subject matter–not a specific genetic makeup–are the essential qualifications for the job. See Moira MacTaggert.)

    Further, where is it stated that faculty at Xavier’s school are employees within the meaning of GINA? I’m sure he pays housekeepers, cooks, and the like, but does Storm pull a salary? Cyclops? Jean Grey? How is their 401(k) plan? No, I’ve always thought that the X-Men were historically funded by Xavier’s family wealth, as well as Angel/Archangel’s wealth. Thus, teachers are not being paid as teachers, but as X-Men, the same as X-Men who do not teach at the school.

    Finally, even if GINA is read as a total ban on consideration of genetic information in hiring decisions (even though the statute itself refers only to negative employment decisions such as firing or not getting hired), and assuming that faculty or members of the various X-teams are paid employees covered by GINA, if you don’t think Xavier is smart enough to set up a few different LLCs (e.g., X-Men, LLC; Xavier’s School for Gifted Youngsters, LLC; X-Factor, LLC; Generation X, LLC; X-Force, LLC; Muir Island X-Men, LLC) owned by a series of unrelated holding companies to skirt the 15-employee requirement, then you’re kidding yourself. I’m pretty sure Xavier can afford top-notch legal counsel that could allow him to set up his affairs so that he could hire as many mutant teachers as he darn well pleases.

    • Melanie Koleini

      While I don’t think Xavier is violating GINA, I think the law does apply to the school. Xavier could potentially violate the law by not hireling a person because they lack the X gene. As mentioned elsewhere in the comments, non-mutants have worked for the school and have interviewed for teaching jobs. I don’t think Professor X is violating GINA because I don’t think he is identifying Mutants based on genetic testing as defined by the law.

    • I think the main issue is whether Cerebro/Cerebra is considered a form of genetic testing under GINA. Professor X used them to locate new students or to keep in contact with the X-men on dangerous missions. Wolverine and Kitty don’t use Cerebra at the Jean Grey School, at least not in terms of hiring. They just put up help-wanted ads. (They probably should have avoided putting any in any form of media Deadpool reads, watches or listens to, since he showed up to apply and would not leave after being rejected by Kitty three times.)

      Jamie Madrox does not use Cerebra to hire staff for X-Factor Investigations. He’s hired mutants, former mutants, genetic constructs and a Troll. Wolverine did not use Cerebra to recruit the members of Uncanny X-Force.

      The Freedom Foundation does not discriminate on the basis of genetics in its hiring of faculty; they have mutants (Leech), a robot (Dragon Man), Moloids, Atlanteans and whatever Alex Power is considered on staff. Likewise, ever since they recruited Quicksilver and the Scarlet Witch to join “Cap’s Kooky Quartet”, the Avengers have never discriminated on the basis of genetics. (They were accused of religious discrimination by Triathlon/3-D Man.)

    • I think if Xavier isn’t paying his teachers for their teaching duties that probably counts as slavery. Paying them for their “job” as X-Men doesn’t count because being an X-Man doesn’t seem like a job (in fact for a long time I believe the X-Men were considered a criminal vigilante organization and were hunted by the authorities). I don’t think he pays them for that either. Not to mention several of them are children (child soldiers?)

      In fact, probably the idea of hiring known superheroes as teachers counts as a potential violation of the students’ rights to education, since apart from the lack of time they might have sorting out the curriculum the classes are in constant danger of being cancelled due to the teaching staff being hospitalised or killed. That the X-Men seem to constitute the ENTIRE teaching staff means Xavier should probably have forced them to choose one or the other (has the school ever employed enough teachers)?I do believe Spiderman lost his teaching job for that self-same reason- the school found out he was Spiderman and fired him for it.

      Can’t count them as volunteers for the same reason- the students education shouldn’t be put at risk by the staff having no legal obligation to stay, or lack of qualifications (are any of them formally qualified teachers?). I’m fairly certain Xavier has made some sort of deal with the government for all this stuff.

      I wonder if universities would be allowed to turn a graduate of the Xavier Institute away as a risk to other students? Their powers might be potentially dangerous, and they might be targeted by the Institutes enemies.

      • Melanie Koleini

        Requirements for private schools vary vastly by state. Some are virtually unregulated some require all teachers be certified the same as public school teachers. This topic would make a good future post.

  17. An unstated aspect of this article would be a potential discrimination environment for not only health insurance, but life insurance. Actuarial tables for those lacking the X gene would obviously not apply. How then does one set a baseline for mutants with divergent characteristics? Would carriers be forced to insurance mutants and assume potential economic risk?

    • Melanie Koleini

      I’m not sure GINA applies to life insurance at all. Even if it does, it would not stop insurances from using information about physical traits and abilities the applicant actually has. If Cyclops applies for insurance, they could factor in the risks of his laze beam eyes. On the other hand (if GINA applies) then Cyclops’s condition couldn’t be used to deny his children insurance.

      • I would not issue a life insurance policy to Cable, ever. He’s died a few times too many, and there are legal issues in the Marvel Universe about whether to pay out to people who die and then come back from the dead.

  18. Considering the number of battles/open hostilities that occur in/on/around/next to/above/underground/within dimensional proximity of the Xavier/Jean Gray school, it seems more likely that the hiring policies are not geared towards hiring teachers but rather towards hiring elite soldiers/security experts/people who can fight monster, who can teach PK-12 on the side, when not training or defending the base/not recruiting or preventing the recruitment of fellow mutants by hostile organizations/engaged as state actors in various world/off-world crises (re: A+X). A regular teacher would have a lot of difficulty adjusting to that environment unless Wolverine or Beast provided a non-powered teaching staff member with a) a REALLY big gun or b) Iron-Man level armor c) armed escort d) all of the above.

    I think the teacher was well within her rights to question the legality of operating a school on the same spot as the Xavier institute, a place that was essentially under siege from hostile forces every damn day of the week. Unless Wolverine is really training his own personal ‘X-Force’, then being in Weschester is akin to operating within a minefield or an active volcano, places that would count as too hazardous to operate a school.
    Heck, the mere PRESENCE of Wolvie on site practically guarantees the school will be attacked by every manner of threat in the MU (sometimes more than 1 threat at a time) many of whom would not otherwise engage in hostilities against the school to being with.

    Of course, Pryde and the other mutants could sue the US/UN/SHIELD for not providing adequate protection for them, thus creating the hostile work environment they find themselves in.

    • Melanie Koleini

      You bring up an interesting point. One could argue that the school is attacked so often because of its student population not because the teachers are X-Men. (I’m not saying it’s true, just that the argument is reasonable.) If the students create the risks (just by existing) that should affect the standards used to hire teachers.

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