Harrison Bergeron1, Title VII and the ADA (or Science Fiction and the Law)
“THE YEAR WAS 2081, and everybody was finally equal.” -- Kurt Vonnegut, from
“Harrison Bergeron”
In October, 1961, acclaimed American author Kurt Vonnegut first published
his short story “Harrison Bergeron”. The story is just under 2200 words but has had
a substantial impact on American legal and political thought. The story arrived as a
warning, 3 short years before the Civil Rights Act of 1964 and its natural expansion
into the workplace decades later with the Americans with Disabilities Act and the
Age Discrimination in Employment Act; all disallowing discrimination based of race,
sex, age, disability, religion, or national origin.
Vonnegut’s story is about America following the 211th, 212th, and 213th
amendments to the United States Constitution. The purpose of the Amendments
was to make all Americans equal. The Declaration of Independence asserted that all
men are created equal. It became the job of the Handicapper General to see to it that
all Americans stayed that way. So as to maintain equality, the Handicapper
General’s office engaged in elaborate and personalized “handicaps”: the beautiful
wore progressively uglier masks, the strong wore weights, and the intelligent wore
distracting earpieces. These handicaps are enforced with prison sentences and
fines, backed by the guns of the “H-G men”.
Harrison is the 14 year old son of George and Hazel Bergeron. He was taken
away from his home under the pretense of attempting to overthrow the
If you have not read it, I implore you to first read the story before advancing
through this paper. It can be found in its entirely online in dozens of places with a
simple search engine.
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government, and fitted with enormous handicaps, as following his eventual escape
he is announced as being, “a genius and an athlete” as well as being underhandicapped despite wearing a mask, a distracting earpiece and the most weight
ever assigned.
The story ends with Harrison escaping prison and breaking into a local ballet,
where he removes his handicaps as well as those of the musicians and dancers. He
gives a short speech and provides a display of his extraordinary abilities as the
musicians play to their fullest ability while the dancers dance unhindered by
weights and masks. The Handicapper General arrives and executes Harrison on
site, ordering the other members to replace their handicaps or face similar
punishment. This entire ordeal is witnessed on television by Harrison’s parents,
who quickly lose track of the event, either through the inattention of Hazel (who is
of the new “average” intelligence) or through the loud, distracting noises blared into
the ears of George, who is capable of above average thought.
In 1964, Title VII of the Civil Rights Act was enacted to end discrimination in
the workplace. More accurately worded, it was intended to level treatment in the
workplace: to make everyone equal. Most claims are filed with a federal agency, the
Equal Employment Opportunity Commission (EEOC), which serves as a modern
Handicapper General’s office, before moving into the court system.
The introductory subsection of Title VII, 42 U.S.C. § 2000e(a) aptly
summarizes the mission of Title VII:
It shall be an unlawful employment practice for an employer--
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(1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's race, color,
religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any
way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because of
such individual's race, color, religion, sex, or national origin.
Prior to 1964, employment discrimination was perfectly legal. It was done
for multiple purposes. Some employment discrimination was simply arbitrary
racism or sexism. Other employment discrimination served a business purpose.
Perhaps a company did not prefer to hire minorities due to the prejudices of
customers, or did not hire women so as to prevent the necessary breaks that come
from a pregnancy.
Title VII claims to address these concerns with 42 U.S.C. § 2000e-2(e)(1),
which states that an employer can discriminate in the event, “where religion, sex, or
national origin is a bona fide occupational qualification reasonably necessary to the
normal operation of that particular business or enterprise.” This is often referred to
as the BFOQ defense. Unfortunately, the Supreme Court neuters this very important
exception in UAW v. Johnson Controls, Inc. 499 U.S. 187 (1991). Johnson Controls
Inc. was a battery manufacturing company. Aware of the threat faced by a fetus
exposed to the lead levels involved in making batteries, the company issued
warnings to all women, saying that they should avoid working in certain positions if
they are at risk of becoming pregnant. The company shifted its policy to one that
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excluded all women from working in positions that exposed them to lead after
several employees became pregnant and tested with critical levels of lead in their
bloodstream according to the Occupational Safety and Health Administration.
Stating that, “…the absence of a malevolent motive does not convert a facially
discriminatory policy into a neutral policy with a discriminatory effect.” Id., the
Court disallowed the threat to an unborn fetus as being enough to necessitate being
male as a bonafide occupational qualification. With Johnson Controls Inc. as
precedent, the BFOQ defense has been consistently upheld in only the most narrow
of circumstances. Neither preferences of customers, workers, or and effort to
prevent lawsuits is enough to qualify as a BFOQ defense.
Much of the problem we face with Title VII, and the Americans with
Disabilities Act is America’s love affair with the conflicting terms liberty and
equality. In order to preserve equality, we must sacrifice liberty, as seen by the
oppressive rules of antidiscrimation laws. Rather than accepting this fact and
openly balancing liberty and equality, America lives under the fanciful illusion that
the two work hand in hand rather than being at odds with each other.
Title VII is a clear affront to liberty: by compelling owners of private
businesses to hire and fire according to systems beyond their own design they lose
the right to make their own decisions and utilize their rightfully earned property
and resources as they see fit. However, if you take two equally qualified applicants
and compel an employer to hire or fire on factors beyond those an employer may
usually make judgments on (even if discriminatory) there is little actual active harm
to the business. There may certainly be passive harm in compelling an employer to
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make decisions that that will cause the business harm, but you aren’t asking the
employer to actively contribute to his own weakness in the market.
A few examples of this passive harm may be seen in disallowing an employer
to hire only white workers when he knows his clientele has its own prejudices and
may not go to a business with minority employees. Customer preference does not
fall under a BFOQ defense. Another may be the employer who is forced to hire
women knowing that a percentage of them will require prolonged periods of time
off or inefficiency in work when they become pregnant. His nondiscriminatory
hiring harms the employer here, but he isn’t required to become actively complicit
in it. Finally, and most pervasively are the symbolic and unintended consequences
of allowing such encroachment upon liberty. The creep effect, commonly known as
the slippery slope effect is an often ridiculed and ignored, but even more often
correct defense to assaults on liberty. If a person does not resist encroachment, he
hastens his own demise. As Edmund Burke said, "All that's necessary for the forces
of evil to win in the world is for enough good men to do nothing.”
The Americans with Disabilities Act (ADA) of 1990 is the natural expansion
of antidiscrimination law begun with Title VII and made subject to the democratic
process. Once the door had been opened to give government the power to dictate
the hiring practices of private businesses, it then only became a matter of how wide
the net could be cast to capture as many people as possible under a protected class.
This is seen with additional acts widening Title VII protections as well as the ADA
Amendments Act of 2008 or the Age Discrimination in Employment Act of 1967.
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Whereas Title VII disallowed discrimination on account of sex and race, these
additional acts added age, disabled status (real and perceived disability), veteran
status, religion, and national origin. To date, sexual orientation is not a protected
class, but as the acts are subject to the democratic process, it can be expected that
just as new disabilities fall under ADA protections, so too shall sexual orientation fall
under Title VII protections. Having already accepted the notion of allowing for
protected classes to promote equality, the lack of protections to homosexuals,
transsexuals, ect is doubly offensive. To disallow them protected class status is to
effectively borrow from George Orwell’s Animal Farm in stating that, “All animals
are equal, but some are more equal than others.” In effect, we are not truly equal;
rather, only those a democratic majority accepts are to be treated equal.
Where the ADA separates from Title VII to create a more perfect tyranny is
in making the employer an active participant in the injustice perpetrated against
him. Now, not only does he have the Title VII requirement to disregard
discriminating due to the disability of an applicant or employee, he must also make
accommodations for the employee at his own expense. A common theme
throughout the ADA is that the employer is expected to provide “reasonable
accommodations”. However, like with Title VII’s exception for the BFOQ, the ADA
claims that a business must not provide the kind of accommodation that would
cause an “undue hardship” upon the employer.
Often though, the courts can consider very expensive accommodations
“reasonable”. There is very little reliability as to what a court qualifies as
“reasonable”. In some circumstances, courts has demanded disabled employees be
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provided jobs over more qualified in employees because the job itself would be the
only one the employee is now capable of. In Smith v. Midland Brake, Inc., 180 F.3d
1154, (10th Cir. 1999), a worker was injured on the job and sued successfully when
his employers would not reassign him over a more qualified employee by putting
him into another department. Yet, in Vande Zande v. State of Wisconsin, 44 F.3d 538
(7th Cir. 1995) the court said that the employee must show the benefit of the
accommodation is proportionate to the cost to the employer.
Title VII also created the Equal Employment Opportunity Commission. The
purpose of the EEOC is to exist as the enforcement arm of these antidiscrimination
laws. The EEOC works as a legal gatekeeper and prosecutorial middleman. Charges
leveled by employees against employers involving the ADA, Title VII, ect, must first
begin as complaints to the EEOC. In the event the EEOC does not find
discrimination, they will allow the case to go forward, but will not provide their
resources to help advance the litigation. This limits equality again by allowing only
those “popular” disabilities or subject classes to be the ones to receive protection.
Now let us return to the connection between these antidiscrimination acts
and Harrison Bergeron. The intent of the 211th, 212th, and 213th amendments to the
Constitution were designed to make everyone equal. “They weren't only equal
before God and the law. They were equal every which way.” Previous to these acts it
could be argued that everyone was equal before the law. There are no protected
classes in a courtroom. All groups have equal access to the courts. But now with the
ADA’s requirement for “reasonable accommodation”, the disabled man is equal with
the able in the workplace. However, when that equality comes at the expense of the
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able; the disabled man, rather than finding his productive place in society, becomes
a destructive force, as he must harm another person to raise his status and abilities.
In Harrison Bergeron, this equality was not only due to the Constitutional
amendments, but also, “…the unceasing vigilance of agents of the United States
Handicapper General.” The EEOC has a host of agents managing its administration.
It is run by 5 politically appointed commissioners, as well as a General Counsel. The
vigilance in prosecuting violations of federal antidiscrimination laws has been
known to fluxuate wildly with the political makeup of the commission. This
demonstrates the danger in allowing others to decide who is equal, rather than for
things to progress in a natural state. If you lift a man temporarily, you only succeed
in ensuring that he falls from a greater height.
Subjecting antidiscrimination laws and the people that fall under them to the
democratic process has and will certainly continue to cause angst and a desire to
increase those that fall under special protection. At one point, Harrison’s mother,
Hazel Bergeron, attempts to ease her exhausted husband’s pain by asking him to
relax his weights:
"If I tried to get away with it," said George, "then other people'd get away
with it-and pretty soon we'd be right back to the dark ages again, with everybody
competing against everybody else. You wouldn't like that, would you?"
"I'd hate it," said Hazel.
When externalities can be imposed that will level the playing field, those below that
level will find it unacceptable to be there for any reason at all. Whether it is by
making the weak stronger or making the strong weaker is irrelevant when concepts
of fairness and equality are concerned. In Sway: The Irresistible Pull of Irrational
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Behavior, by Ori and Rom Brafman, they describe an experiment where subjects are
offered a choice between receiving a sum of money identical to the other people in
their group, or twice that sum of money, but the members of the group get more
than the test subject. In the interests of fairness (or perhaps envy), the test subjects
overwhelmingly chose the smaller sum: it was equal, after all.
The push for equality actively through the law takes us into the idea of
making people better and denying nature. “Not only were the laws of the land
abandoned, but the law of gravity and the laws of motion as well.” Some people are
naturally stronger, smarter, and more resistant to disease, ect. Vonnegut brings us
to this bleak dystopia where we fought the laws of nature, but doesn’t really address
the unintended consequences of that world.
On January 17th, 2001, Professional Golfer Casey Martin’s attorney argued
before the Supreme Court that the ADA demanded that the Professional Golf
Association Tour allow him to use a golf cart during their Tournaments. Martin had
a documented circulatory disorder. This prevented him from being able to walk the
necessary 18-hole course as the other golfers do.
The PGA Tour argued that walking the course was a necessary rule of the
game, as fatigue takes a mental and physical impact upon the players. Backing this
assertion were several professional golfers. The Court did not accept this argument.
Justice John Stevens wrote that walking was not an indispensible rule of golf, and
that shot-making is the sole aspect of the game. As a result, the PGA Tour was
required under the Americans with Disabilities Act to provide reasonable
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accommodations. In this case that meant Casey Martin would be allowed to use his
golf cart.
In his dissent, Justice Antonin Scalia cited Harrison Bergeron, and stated that
the ADA:
[meant] that everyone gets to play by individualized rules which will assure that no
one's lack of ability (or at least no one's lack of ability so pronounced that it
amounts to a disability) will be a handicap. The year was 2001, and "everybody was
finally equal." K. Vonnegut, Harrison Bergeron
Science Fiction is generally not afraid to address these issues. Classics such as 1984,
Brave New World, or Fahrenheit 451 show us more dystopian futures. In The
Forever War by Joseph Haldeman, the main character, William Mandella returns
home after a few months of battling aliens in distant worlds. Due to time dilation,
when he returns, it is decades in a future foreign to him where the law prevents his
mother from getting necessary medical attention due to her advanced age in a
society with rationed “universal healthcare”. Mandella, who was dissatisfied with
military life and prepared to leave it, reenlists into the military for continued combat
as he is disgusted with the world he has returned to, not unlike the culture shock of
a prisoner being released after decades behind bars.
Robert Heinlein, often referred to as the “Dean of Science Fiction” has legal
themes throughout several of his books. In The Moon is a Harsh Mistress, a
newcomer to the moon is nearly killed upon violation of local customs. A friendly
local teaches him that legal matters are often handled by hiring a judge and jury.
The parties agree upon a judge and money is offered at the scene of the
“crime” to recruit passers-by as jurors:
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"Why, I suppose I need a lawyer, too."
"I said 'counsel,' not 'lawyer.' Aren't any lawyers here." Again he seemed
delighted.
“I suppose counsel, if I elected to have one, would be of the same, uh,
informal quality as the rest of these proceedings?"
"Maybe, maybe not. I'm an informal sort of judge, that's all. Suit yourself."
"Mm. I think I'll rely on your informality, your honor."
The case ends with a fine to the accused (as opposed to being thrown into the
airlock as he had been facing. The judge is paid the agreed upon rate as is the
jury, with the judge fining one juror for falling asleep during the trial.
In Stranger in a Strange Land, Heinlein addresses many novel legal
ideas, one of which being the “Fair Witness”:
He was lucky in being able to retain James Oliver Cavendish as his
Fair Witness. While any Fair Witness would do, the prestige of Cavendish
was such that a lawyer was hardly necessary-the old gentleman had
testified many times before the High Court of the Federation and it was said
that the wills locked up in his head represented not billions but trillions.
The Fair Witness was a specially trained person, sometimes quite expensive, who
could be hired to accompany a person anytime a witness might be necessary.
Considering the modern reliability problems with eyewitnesses, a specially trained
and credible witness could be invaluable. A citizen of the Federation could demand
a Fair Witness at any time when legal matters are involved. This could also cause a
Fair Witness to be used as a shield when a person fears abuse by authorities.
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The testimony of a reliable witness on the whether or not an event actually
happened would be more powerful than that of an attorney. The Fair Witness had
his limitations though. Following a simple and costly legal blunder:
"Damn! Good Lord, Mr. Cavendish, why didn't you suggest it to me?"
"Sir?" The old man drew himself up and his nostrils dilated. "It would not
have been ethical. I am a Fair Witness, not a participant. My professional association would
suspend me for much less. Surely you know that."
Stranger in a Strange Land also is also replete with simple legal barbs. Swiping at a
man’s exasperation at a “fantastic” assertion, its proponent responds, “Don’t use that
word to a lawyer, he won’t understand you. Straining at gnats and swallowing
camels is a required course in all law schools.”
Shortly after, he claims that even hundreds of years into our future, "It is (the
fifteenth century) to a lawyer. They still cite Blackwell, Code Napoleon, or even the
laws of Justinian.” Considering that today’s law student still learns law in much the
same way as the lawyers of America’s founding, this is a hard point to argue against.
A modern law student sits at his desk into the late night learning property law by
reading Pierson v. Post and other ancient cases from the Queen’s Bench, just as
Jefferson, Hamilton, Henry or Adams read the very same cases late into the night by
candlelight.
Science Fiction is much more than simple-minded escapist literature. Well
written sci-fi provides a blank pallet and an opportunity to explore ideas in a setting
uncluttered by the compromised world we live in. Books like The Moon is a Harsh
Mistress and Stranger in a Strange Land allow us to experiment with ideas like the
Fair Witness, jury nullification, and voluntary, hired judges and juries.
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Harrison Bergeron gave us a warning: equality mandated by the law and
enforced by government agents does not strengthen the weak. Rather, they weaken
the strong. That future is a bleak one that ends in degrading the species and the
eventual extinction of man. To ignore the political and legal game theory of science
fiction as being simple escapist fiction is to ignore a valuable learning tool to
advance our legal and political future.
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