Category Archives: civil rights

Superpowers and the ADA

Posted on December 16, 2010 by | 25 comments

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.

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Posted in civil rights

Is Batman a State Actor?

Posted on November 30, 2010 by | 87 comments

Constitutional limitations on things like censorship, discrimination, and search and seizure do not apply to private individuals but rather to the federal government and, in some cases, to the states.  (The Thirteenth Amendment is a rare exception that applies to individuals).  As a result, evidence that a superhero obtains by breaking into a villain’s headquarters is admissible even though it was obtained illegally.  See, Burdeau v. McDowell, 256 U.S. 465 (1921).  And since it doesn’t invoke the fruit of the poisonous tree doctrine, any additional evidence obtained via the original evidence would also be admissible.

But what about superheroes like Batman who work in close cooperation with the police?  Could they fairly be described as state actors, thus triggering a whole spate of Constitutional protections?  I think the answer may be yes.

In Lugar v. Edmondson Oil Co. the Supreme Court gave a two-part test for whether the conduct of a private party could be fairly attributable to a state, thus implying state action:

First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible….Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).

In Batman’s case, Commissioner Gordon is certainly a person for whom the State is responsible, and Batman often acts together with Gordon and obtains significant aid from Gordon in the form of information and evidence.  Batman’s conduct is also otherwise chargeable to the State because the Gotham Police Department has worked with Batman on numerous occasions (and thus knows his methods) and operates the Bat Signal, expressly invoking Batman’s assistance in a traditionally public function.  This suggests state action under the public function theory: “when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations.”  Evans v. Newton, 382 U.S. 296, 299 (1966).

In the real world, this would cause significant problems for Batman and Gotham.  Batman’s rough and tumble style would lead to a rash of Section 1983 claims for damages and probably also for an injunction against Batman’s future cooperation in police investigations.  As discussed earlier, most evidence that Batman collects would be inadmissible, and police use of that evidence might bar the use of additional evidence collected during a subsequent police investigation.

Now, clearly none of this is the case, so there are three possibilities.  Either all of the criminals in Gotham have incompetent attorneys, the state action doctrine in the DC universe is weaker than it is in the real world, or Gordon has actually managed to keep his reliance on Batman a secret.  I’m going to opt for the second explanation.  Superheroes like Batman are simply too effective for a court to shackle them with the Constitutional limitations of the state, especially with supervillains running around.  Perhaps the DC universe courts have developed a public emergency or necessity exception to the state action doctrine whereby private individuals pressed into public service in an emergency are not held to the same standards as ordinary state actors.

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Posted in Batman, civil rights, criminal procedure, superheroes

Mutants and Anti-Discrimination Laws, Part Three

Posted on November 30, 2010 by | 14 comments

We’ve previously discussed two potential approaches for protecting mutants and other innately superpowered beings from discrimination.  But legal protection can be a double-edged sword for organizations that cater to mutants exclusively.  If organizations couldn’t discriminate on the basis of mutant status, would the Xavier Institute be forced to take in non-mutants?  Would S.H.I.E.L.D. be forced to hire regular people?  Probably not, but they might have to do a little restructuring to maintain their exclusivity.

(Before we get into the details, I realize the Xavier Institute no longer exists as such, but let’s assume the mutant civil rights campaign was successful pre-“Messiah Complex.”)

If the Xavier Institute is a private school that takes no public funding, then it has more leeway to discriminate, albeit with potential repercussions such as loss of its tax exempt status (assuming that the Institute is organized as a non-profit in the first place).  See, Bob Jones Univ. v. United States, 461 U.S. 574 (1983).  If the Institute takes public funding, however, then it will generally be required not to discriminate:

The private school that closes its doors to defined groups of students on the basis of constitutionally suspect criteria manifests, by its own actions, that its educational processes are based on private belief that segregation is desirable in education. There is no reason to discriminate against students for reasons wholly unrelated to individual merit unless the artificial barriers are considered an essential part of the educational message to be communicated to the students who are admitted. Such private bias is not barred by the Constitution, nor does it invoke any sanction of laws. but neither can it call on the Constitution for material aid from the State. Norwood v. Harrison, 413 U.S. 455, 469 (1973).

It could be argued that mutant status is related to individual merit, and that the special curriculum of the Xavier Institute would be of little use to a non-mutant student, but that argument cuts both ways.  If it is permissible for the Xavier Institute to discriminate in favor of mutants because it is a school for special students, then it would also be permissible for a regular school to discriminate against mutants because it is a school for typical students.

No, the most likely result is that the Xavier Institute would have to rely on private funding or open its doors to non-mutant children.  My guess is that, given society’s attitude towards mutants, few parents would send their non-mutant children there, especially since much of the curriculum would be of no use to them (e.g. Northstar’s flying class) and the super-genius mutants probably wreck the grading curve for the normal classes.

S.H.I.E.L.D. is a different story altogether.  Unlike most superhero groups, S.H.I.E.L.D. is a part of the U.S. government.  Groups like the X-Men and the JLA are presumably private organizations that do not even employ their members, so they are free to discriminate as they wish.  Private clubs can even avoid the requirements of the ADA, which is important when designing superhero bases.  42 USC 12187.  If S.H.I.E.L.D. and the US government want to avoid a discrimination suit, it will have to take some precautions.

The Federal government has specific rules that it must follow when employing people.  These rules are part of the civil service or “merit system.”  The first principle is:

Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity. 5 USC 2301(b)(1).

As you can see, S.H.I.E.L.D. has room to prefer those with superpowers where such powers are relevant to the job (i.e. a bona fide occupational qualification).  The problem is that superhuman abilities are not actually a requirement of being an agent of S.H.I.E.L.D.  Numerous S.H.I.E.L.D. agents, although plainly very skilled, are not superhuman, at least not inherently (e.g., Nick Fury, Tony Stark, Clay Quartermain).  This may make it difficult for S.H.I.E.L.D. to preferentially hire people with superpowers except when a position requires a particular ability (e.g. the Psi-Division).

There is an outlet, though.  Not all civil service positions are covered by the merit system: “‘covered position’…does not include any position which is…excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration.” 5 USC 2302(a)(2)(B).  As long as the President signs off on a given position before a new agent is brought on board, S.H.I.E.L.D. is free to hire whomever it wishes.

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Posted in civil rights

Mutants and Anti-Discrimination Laws, Part Two

Posted on November 19, 2010 by | 13 comments

In the previous post we considered whether discrimination against mutants was constitutional under the Equal Protection Clause of the 14th Amendment and concluded that it probably was.  In this post we take a look at substantive due process and whether mutants are a “discrete and insular minority.”

Substantive due process rights are derived from the Due Process Clause of the 14th Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law.”  While we ordinarily think of due process as being about, well, procedural rights (e.g. the right to a hearing), substantive due process protects rights held to be fundamental to our scheme of ordered liberty or deeply rooted in American history and traditions. McDonald v. City of Chicago, 130 S. Ct. 3020, 3036 (2010).  An example of such rights that is relevant here are “the rights of ‘discrete and insular minorities’ — groups that may face systematic barriers in the political system.”  130 S. Ct. at 3101. When a law implicates such a right, the courts apply a strict scrutiny standard.

But the courts do not recognize new substantive due process rights lightly.  “Recognizing a new liberty right is a momentous step. It takes that right, to a considerable extent, outside the arena of public debate and legislative action.”  Id.  However, “[s]ometimes that momentous step must be taken; some fundamental aspects of personhood, dignity, and the like do not vary from State to State, and demand a baseline level of protection. But sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society provides an important tool for guiding judicial discretion.” Id.

So the questions are raised: are mutants a discrete and insular minority?  do they face systematic barriers in the political system?  do anti-mutant laws threaten fundamental aspects of personhood or dignity that demand a baseline level of protection?  I think the answer to all of these questions is yes.  Although anti-mutant discrimination is a relatively new phenomenon, it has existed essentially as long as mutants have.  Such discrimination is pervasive, sometimes violent, and often backed by the authority of the state.  In at least one case it has even lead to the wholesale enslavement of mutants.  The discrimination goes to the mutants’ very humanity, and there can hardly be a more fundamental aspect of personhood or dignity than that.

So while the argument under the Equal Protection Clause may be somewhat weak, I think there may be a stronger argument under the Due Process Clause.  Did any X-Men series ever address a court challenge to anti-mutant laws?  For a couple hundred thousand dollars in legal fees the X-Men could have saved everyone a lot of trouble.

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Posted in civil rights, X-Men

Mutants and Anti-Discrimination Laws, Part One

Posted on November 19, 2010 by | 6 comments

Discrimination against superheroes, particularly mutants, is a perennial problem in the Marvel universe, but there’s an argument to be made that the existing constitutional anti-discrimination framework would protect mutants.  First we consider the Equal Protection Clause of the 14th Amendment.  In a follow-up post we’ll discuss substantive due process.

The Equal Protection Clause of the 14th Amendment states that “No State shall…deny to any person within its jurisdiction the equal protection of the laws.”  The Supreme Court has held that “[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest….The general rule gives way, however, when a statute classifies by race, alienage, or national origin. These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy — a view that those in the burdened class are not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest.” Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985).

The Court has also held that other classifications (sex and legitimacy of birth) are subject to a heightened standard called intermediate scrutiny.  “[W]hat differentiates sex from such nonsuspect statutes as intelligence or physical disability…is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. Rather than resting on meaningful considerations, statutes distributing benefits and burdens between the sexes in different ways very likely reflect outmoded notions of the relative capabilities of men and women….Because illegitimacy is beyond the individual’s control and bears no relation to the individual’s ability to participate in and contribute to society, official discriminations resting on that characteristic are also subject to somewhat heightened review.”  473 U.S. at 440-41 (internal citations and quotations omitted).

“So far, so good,” you may be thinking.  After all, discrimination on the basis of mutant status is often based on “prejudice and antipathy” and unlikely to be rectified by legislative means because mutants are such a small minority.  Or, at the very least, mutant status is “beyond the individual’s control and bears no relation to the individual’s ability to participate in and contribute to society,” at least inasmuch as mutants are generally equal to or superior to typical humans in every way.

Alas it is not that easy.  First, unlike the problems of discrimination on the basis of race, citizenship, national origin, sex, and legitimacy, discrimination on the basis of mutation is a relatively new phenomenon, only a few decades old.  A court may be unwilling to conclude that it is a problem unlikely to be rectified by legislative means without giving the issue more time to develop.  Second, from a legal perspective mutation would indeed bear a relation to an individual’s ability to participate in and contribute to society.  For example, one could easily imagine jobs that particular mutants could do much better than a typical human.   However, let’s continue with the Cleburne case for an example of the Supreme Court declining heightened protection to a class and see if mutation fits the mold.

The Cleburne case was about discrimination against people with mental disabilities (basically the City of Cleburne had an ordinance that required a special zoning permit for the operation of a group home for the mentally disabled).  The Fifth Circuit held that mental disability was a quasi-suspect-classification due at least some heightened scrutiny, but the Supreme Court disagreed.  First, it held that mental disability was a highly variable condition requiring carefully tailored solutions not befitting the judiciary.  Id. at 442. Second, it held that cities and states were addressing mental disabilities in a way that did not demonstrate antipathy or prejudice.  Id. at 443. Third, the existence of positive legislation indicated that the mentally disabled were not politically powerless. Id. at 445. Fourth, if the Court recognized mental disability as a suspect class it would have to do the same for “a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least part of the public at large[, such as] the aging, the disabled, the mentally ill, and the infirm. We are reluctant to set out on that course, and we decline to do so.” Id. at 445-46.

So we can see that while some of this decision cuts in favor of mutants (the second and third points are lacking in the case of mutants), the first and fourth points cut against them.  Mutation is indeed a highly variable condition, and arguably it is “a difficult and often a technical matter, very much a task for legislators guided by qualified professionals and not by the perhaps ill-informed opinions of the judiciary.”  Id. at 443.  And making mutation a suspect class would open a door the Supreme Court explicitly declined to open in Cleburne.  Given the Court’s current reluctance to embrace homosexuality as a suspect class, it’s questionable whether it would do so for mutants.  In the next post we’ll consider whether substantive due process offers a better argument.

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Posted in civil rights, X-Men