The Free Market 13, no. 3 (March 1995)
How can business comply with the Americans With Disabilities Act? It can’t. The ADA has created an inescapable trap for companies, a bottomless pit for liberty and property, and an unremitting excuse for harassment and control.
John Casey, writing in the University of Puget Sound Law Review (Winter 1994), asks us to consider the following scenario. You own a small business. You ask a white female employee to make a delivery, during which she is grabbed by a black man, thrown to the ground, and badly injured.
Once she regains her physical health, she announces that she has a disability: black males give her panic attacks. Her condition must be accommodated, she says, through separating her work space from blacks.
She cites the ADA as her backup, and implicitly threatens a lawsuit. If you refuse, you are probably guilty under the ADA and face litigation and immense financial burdens. If you agree, you are guilty under the Civil Rights Act and face litigation and immense financial burdens.
You’re trapped, as Casey points out. The law protects psychological disabilities and demands accommodation. But is race phobia (a “dissociative disorder”) included? The Bush administration and Congress didn’t exempt it, as they did transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, compulsive gambling, kleptomania, and pyromania. (Thanks a lot.)
Otherwise, the government says a disability is any “physical or mental impairment” that “substantially limits one or more major life activities.” Well, that covers everything from total immobility and ingrown toenails to severe schizophrenia and mood swings. If you want to be a victim, and you don’t otherwise qualify, this is your ticket to empowerment.
What, then, are the mental troubles the law “protects”? Consult the DSM-III-R: fear of flying, fear of spiders and snakes, fear of heights, fear of public speaking, fear of communicable diseases, and, yes, race phobia. That’s only in one sub-category. There are hundreds of others, including obsessive compulsive disorder, agoraphobia, and post-traumatic stress disorder. What kind of accommodation do these require? The courts are deciding on a piece-meal basis and, in the meantime, the private sector is suffering.
Especially important is a 1981 case (Doe v. Region 13 Mental Health-Mental Retardation Commission), filed under the Rehabilitation Act (an ADA for public institutions). A woman declaring “excellent” health got a job in a mental-health clinic. She hid her own anxiety, insomnia, depression, and the fact that she had tried to kill herself a year earlier.
After beginning work, Miss Doe also began psychotherapy. After bouts of hysteria and depression, she checked herself into a hospital. The doctors wanted to institutionalize her for a year. She refused, and continued with her job, threatening to kill herself by dropping her hair dryer in the tub. The clinic finally gave up, dismissing her on grounds that it was “concerned about funds and public image.”
Bad move. A court ruled that since Miss Doe was “disabled,” the clinic should not have fired her, but instead made “reasonable” accommodations. The clinic was forced to put her back on the payroll and pay back wages.
The crazy should be treating the crazy, the judge says, because otherwise that would be “discrimination.” And thanks to the ADA, the same insane standards now apply to nearly every business in the country.
When George Bush signed the ADA on July 26, 1990, he claimed to be insuring justice, i.e., merely adding the “disabled” to the list of official victim groups with special rights. That would be bad enough (whatever happened to the rights of property owners?), but much more was going on behind the scenes.
The Congressional statists who pushed it—including Bob Dole and Newt Gingrich—knew exactly what they were doing: adopting a sort of central planning on crutches. And indeed, the ADA has transformed the American workplace. If every employee, or even applicant, chose to use the ADA’s powers tomorrow, the economy would come to a screeching halt, courts would be flooded, businesses would be bankrupt, lawyers would be rich, and the government would exercise total control over every labor-related decision in nearly every business in the country.
That’s still a while off, but disability is the fastest growing sect in the victimological religion, and the law journals are brimming with articles that demonstrate, usually inadvertently, how the ADA is incompatible with free markets.
Under the ADA, illegal discrimination is “not making reasonable accommodations” or “limiting, segregating, or classifying a job applicant or employee” in a way that “adversely affects the opportunities or status” of an applicant or employee “because of” the disability. It is “participating” in a “relationship” or using “standards, criteria, or methods of administration” that “have the effect of discrimination” or “perpetuate the discrimination of others.”
It is also “excluding or otherwise denying equal jobs or benefits” to a “qualified” person “because of” disability. It is “denying employment opportunities” to a disabled person or “using qualification standards, employment tests or other selection criteria” that screen out “or tend to screen out” people with disabilities, unless such test is “job-related.”
Well, that sure gives the central state the upper hand. Who, under these circumstances, would be willing to take the risk? Big business will hire the token disabled, but the law makes sure that all other businessmen will bar the door to disabled people if they possibly can. Far better to hire somebody you know, or who comes privately recommended, then to place an ad in the paper. Yet this is not the way the labor market is supposed to work.
A free market benefits employers and employees. Each person can find work that maximizes his contribution to the community of enterprise. And employers can find the right employee at the right price. The ADA abolishes the market under the pretense of helping the handicapped, while actually insuring that they will be shunned as if they had a neon sign on their foreheads flashing, “Lawsuit, Lawsuit.”
Much has been made of the “reasonable accommodation” provision, as if it protects employers from wholesale looting. In fact, it’s no consolation. It simply makes plaintiffs demand something that appears “reasonable” before they sue. An example might be an employee who needs to take medication in regular intervals throughout the day. Doesn’t that seem reasonable?
Casey raises this quandary: what if the person refuses to take the medication? Can the employer be held liable? Should the employer supervise the taking of the medication? What about the employee who is not a threat to others when taking the medicine, but might slit someone’s throat without it? When does “reasonable” end and “unreasonable” begin? That’s up to our socialist central state and its courts.
In another tricky legal question, if the employer shows that the “disability” is itself a disqualifier, the person is not covered by ADA. So the litigious have this all figured out. Plaintiffs no longer exaggerate their disabilities. They hope to show that they are disabled, but not so disabled as to be unqualified. Then they can hit the jackpot.
This is not the way business is supposed to operate. The ADA violates every ideal that motivated capitalists in the first place. Businesses are supposed to serve their customers (who?) and not D.C. bureaucrats or the tyrants in black robes. Yet under the ADA, businessmen are forced to redistribute wealth from the non-disabled to the disabled, and from the severely disabled to the less-severely disabled.
Janet Reno tells business to take a “proactive stance” toward the ADA. That means they should be so scared that they placate every implied demand, whether jurisprudentially required or not. It’s why disabilities consulting is where the money is. Every institution, public or private, has been on a two-year scramble to figure out what the law means and how it is going to be enforced.
The result has been incalculable losses. Yet when anyone criticizes the ADA, the disabilities lobby has a pat response. That’s a “hate thought,” they suggest, a charge routinely used to cover the most vicious actions of government.
For those with good sense, there can be no compromise with the ADA. It is radically uneconomic, logically indefensible, and obviously unconstitutional. This law must be repealed immediately, without hearings, and without the debate that would feature every paid lobbyist on crutches in Washington. Unfortunately, Gingrich and Dole continue to support this socialist measure.
Everyone is disabled in some sense. Yet the problem of the ADA goes much deeper. The American economy is being wrecked by civil-rights socialism, whose fundamental tenet is that bureaucrats in Washington, D.C., can know what motivates businessmen in hiring, firing, and promoting people. They can read minds. That’s the fatal conceit of civil rights law.
The ADA and all other anti-discrimination laws compel exchanges that would not take place in their absence. When people are forced by government to behave in ways contrary to their interest, their wellbeing declines. Involuntary servitude is imposed on the free market.
So what can we say about the white woman who refuses to work around blacks? Should the government compel the employer to accommodate her “disability”? Of course not. The employer should be free to make his own decisions, and face no coercion. The days when employers could do that are long ago and far away. But they also represent the future, when the central state has lost its legitimacy thanks to legal and economic atrocities like the ADA.
