Superhero Amputee Wrestles with Work Limits, Disability Harassment

One of the best reasons to watch Netflix is to get EntertainHR article ideas from the Marvel Cinematic Universe. There are so many to choose from, but the various miniseries based on the Defenders (Luke Cage, Jessica Jones, Daredevil, and the Iron Fist) are the best. Of those miniseries, my favorite is Luke Cage (Mike Cotler), Harlem’s bulletproof super (anti?) hero.  Luke Cage, a wrongfully convicted former police officer, and Misty Knight (Simone Missick), a fearless and talented NYPD patrol officer stationed in Harlem, are frenemies.

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Misty lost her dominant arm protecting her friend Colleen (Jessica Henwick) from a sword-wielding Bakuto (Ramon Rodriguez).  Ultimately, Danny Rand/Iron Fist (Finn Jones) created a bionic arm for Misty (although the comics portray that Iron Man actually created this bionic arm) that gave her superhero abilities.  However, for a brief period of time and prior to receiving this super bionic arm, she returned to work at the precinct.

At the end of season 1 and beginning of season 2 of the Luke Cage miniseries, Misty’s dominant arm was amputated. Recovering from the loss of her arm, Misty retired from the police force. She was energized to return to work, however, when she realized that several dozen criminals she had put behind bars were being released.  Unfortunately, as an amputee, she was deemed unable to perform her duties and assigned to desk duty. Her coworkers teased her. Even on desk duty, it was difficult to write with her nondominant hand.  While likely not within the course of her duties, during an exciting scene consisting of a bar fight with an abusive patron, she swung at him with her now-amputated arm and missed.

Misty was obviously unsatisfied with her assignment to desk duty—what could she do in this role but “push paper”? She desired to return to patrol work so that she could get the bad guys back behind bars. Did Misty have any options under the Americans with Disabilities Act (ADA)? The key question to guide the discussion is whether Misty was qualified to work as a patrol officer. A related question, although Misty seemed unbothered by her colleagues’ taunting, is did she have legal recourse against them for harassment?

Does ADA Apply?

Discrimination under the ADA is defined as the failure of an employer to make reasonable accommodation to an otherwise qualified individual with a disability.

Did Misty Suffer from Disability?

The first question in determining an employer’s obligations under the ADA is whether a condition is a disability. In Misty’s case, it is clear that her amputated dominant arm substantially limited a major life activity, and she was therefore disabled under the ADA.

Was Misty a Qualified Individual?

The second question is whether Misty was a qualified individual under the ADA. A qualified individual under the ADA is a person who with or without reasonable accommodation can perform the essential functions of a job that she holds or desires.

Equal Employment Opportunity Commission (EEOC) regulations provide that an alleged job function may be essential if the reason the position exists is to perform the function. Essential job functions of patrol officers have been described (although some courts have disagreed) as effecting forcible arrests, driving a motor vehicle under emergency conditions, and qualifying to use weapons.

Regarding reasonable accommodations, while courts have agreed that an individual with a flail arm is not a qualified individual because he cannot perform the essential job functions of a police officer with or without an accommodation (since the arm cannot move at all), an operational prosthetic (that mimics the actions of a functioning arm) and certainly a super prosthetic are arguably reasonable accommodations.  Further, some police departments have allowed police officers who were unable to “weapon qualify” with both hands to weapon qualify with one hand (a reasonable accommodation).  Surely, with her super-bionic arm, Misty could weapon qualify and effect a forcible arrest. Although shey was exhibiting trouble writing with her nondominant hand, maybe if given the opportunity to weapon qualify with one hand, her tenacity would have prevailed.

Further, vehicle modifications are available to assist drivers with missing limbs. Even temporary light duty has been considered a reasonable accommodation. But permanent light duty for a police officer, without conversion of the position into a non-police officer position, has not been viewed as a reasonable accommodation, as such positions are generally set aside for temporarily injured officers.

Was Teasing by Coworkers Considered Arguable Harassment?

Several courts of appeals have held that disability harassment is actionable; however, the Second Circuit, where Misty’s precinct is located, has not yet ruled on the issue. Nevertheless, if Misty complained about her coworkers’ conduct, the NYPD should have taken the allegations seriously and investigated.

Bottom Line

Outside of the Marvel Cinematic Universe, employers may never handle reasonable accommodation issues involving employees with super-bionic limbs who partner with bulletproof super (anti?) heroes. However, an understanding of the types of individuals who must be offered reasonable accommodations and the types of activities that encompass reasonable accommodations will prove invaluable to human resources personnel.

Destiny Washington focuses her practice at FordHarrison’s Atlanta office on the representation of employers in labor and employment law matters. Her experience representing an international union and state and local government entities, including law enforcement agencies and school districts, gives her a unique perspective in her advice and representation. A former military print journalist, she has proudly served her country and is a veteran of the U.S. Army and the Louisiana Army National Guard. Find her on LinkedIn here.