The Americans with Disabilities Act

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The following is from John Stossel. Give Me a Break. pp. 202 - 213

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Today if you steal money, mutilate your husband, kill your parents, it may be because you're a victim. If you're Washington mayor Marion Barry, caught smoking crack, you're a victim of a racist plot. If you're caught groping the office staff, you're a victim of frotteurism, a disease that compels you to fondle breasts (a dentist in Philadelphia claimed that and sued for disability payments). Caught driving drunk? You're not really responsible. You're a victim of alcoholism.

Don't blame me, it's not my fault.

It's not that Americans are fragile, inclined to victimhood. The country was founded by tough adventurers. They didn't want handouts. They wanted government to leave them alone. This self-sufficiency built America. It's also a natural part of human nature. Watching kids on the playground, you see how they test themselves against new obstacles. They struggle to climb, fall, then climb again. No one tells them to do this. Overcoming obstacles makes people feel good about themselves.

In the past few decades, we've corrupted this spirit by passing well-intended laws meant to make life kinder and more "fair." They accomplish neither.

The Americans with Disabilities Act

When legislators passed the ADA, they bragged it would "protect 43 million Americans?' Forty-three million? The number should have raised alarms—it meant one in six of us was disabled. How is that possible? If one in six of us is disabled, what exactly does "disability" mean?

The law defines it as "an impairment that substantially limits your life activities, a record of such impairment, or being regarded as having such an impairment?' Wonderfully vague. Vague laws are great for "disability rights" lawyers. The American Bar Association devoted 70 pages of text to just trying to explain what the word "disability" means. What is an "impairment"? What's a "substantial limitation"? Is being stupid a disability? Feeling compelled to fondle women? Being fat? Who knows? When it goes to court, some judges say no, some say yes. The breast-grabbing dentist didn't win his suit, but that was cold comfort to his insurance company. It still had to pay lawyers' fees. Many businesses settle to avoid these costs.

The ADA requires employers to "accommodate" disabled employees. Maybe I can collect some money. Did my ear pain from my bout with the "wrestler" qualify me for special "accommodation"? How about my stuttering? Maybe that's why I don't have Peter Jennings's job. Should I sue ABC?

It's by no means clear that the law has helped the truly disabled. In fact, it's made it harder for some to find work.

Fewer jobs for the disabled

Consider the threat the ADA poses to an employer who wants to do the right thing. The minefield starts with the job interview. For a 20/20 piece titled "Getting In on the Act," Julie Janofsky, a labor lawyer, patiently explained to me that certain disability-related questions are forbidden. For example, if you come to my office with your arm in a sling and ask me for a job ...

John Stossel: Can I ask, "Are you disabled in some way I should know about?"

Julie Janofsky: No. You cannot ask if I'm disabled, even if I come in with my arm in a sling.

John Stossel: It would be discriminatory just to ask?

Julie Janofsky: That's correct.

John Stossel: Can I ask you if you've been addicted to drugs?

Julie Janofsky: No. You cannot ask any questions about prior drug addiction.

John Stossel: Can I ask you if you're addicted now?

Julie Janofsky: Yes, but not to legal drugs. You can ask me if I'm addicted to

marijuana and cocaine now. You can't ask me if I'm addicted to Valium now, because if I'm addicted to Valium now, I'm protected under the ADA.

How are employers supposed to understand this? I confronted Gilbert Casellas, head of the Equal Employment Opportunity Commission under President Clinton. He said the ADA is a wonderful law, and had the nerve to say it isn't complicated. "None of this stuff is rocket science," he said.

"That was a perfect setup line," I thought, so I asked him about Janofsky's example:

John Stossel: If you come to me applying for a job, and your arm is in a sling, can I ask you why your arm is in a sling?

Gilbert Casellas: You can ask—you know what? I'm going to ask you to stop the tape, because we're getting into—

John Stossel: You want to check—?

Gilbert Casellas: We're getting into a complicated area of what you can and cannot ask at the appropriate time.

Oh, I see; we're into a "complicated area." Knowing what job interview questions are illegal is too complicated for the head of the EEOC, but every employer in America is supposed to understand it. At his request, we stopped taping while he consulted with one of his assistants. They discussed the issue for about five minutes, and then Casellas indicated he was ready to resume. So I repeated the question:

John Stossel: You come in with your arm in a sling, I can't ask you what's wrong?

Gilbert Casellas: You can ask me whether I can do the job.

John Stossel: You say the interview rules are simple. You run the EEOC—you don't even understand them well enough. You have to stop and ask your assistant what the rule is.

Gilbert Casellas: Well, because you asked me a specific question, using a specific situation.

That's the point! Every employer is in a specific situation, and lawyers are ready to pounce if they don't do everything according to the law. And the laws are now so complex, it's impossible to obey all of them. Exxon gave Joseph Hazelwood a job after he completed alcohol rehab; he was made captain of the Exxon Valdez. One night Hazelwood had several drinks, then went to his cabin and let a subordinate steer. The ship then ran aground. Exxon was sued for allowing it to happen. So then Exxon decided employees who've had a drug or drinking problem may not hold safety-sensitive jobs. The result? You guessed it—employees with a history of alcohol abuse sued, demanding their right, under the ADA, to hold safety-sensitive jobs. Exxon can't win. They get sued if they do, sued if they don't.

What would the head of the EEOC say about that? Amazingly, he said, "That's an easy case." Exxon's restrictions "illegally discriminated."

So I asked if that meant Exxon should not have had to pay billions of dollars for the Valdez spill?

Casellas answered, "Well, you know, that's another issue."

Not his problem.

Well-intended but complicated and unpredictable laws like the ADA eventually hurt the people they were meant to help. They cause employers to avoid the disabled. One poll found that since the ADA was passed, the percentage of disabled men who were employed dropped. Why? Some employers told us it was because their lawyers tell them disabled people are "dangerous" because they can become legal liabilities. "Once you hire them, you can never fire them. They are lawsuit bombs," one told me. "So we just tell them the job has been filled."

This unintended consequence of the ADA shouldn't have been a surprise. If you give some workers extra power to sue, employers avoid those "lawsuit bombs."

So the disabled get fewer job offers, while the lawyers get richer.

MORE VICTIMS

Legislators envisioned the ADA helping the blind and people in wheelchairs, but it's mostly people with sore backs and lazy people who have come to use the law. When you give everybody the chance to say, "No, you can't fire me, because my back is sore," you invite abuse.

Every year, the number of "disabled" grows. When Boston University fired a professor for sexually harassing students, he sued, saying he couldn't be fired. He was protected by the ADA because he had a "sexual disability." A police officer in North Carolina sued, saying she couldn't work the night shift because she had a "shift work sleep disorder." When a high school tried to fire a guidance counselor who'd been caught with cocaine, he sued, saying he was protected by the ADA because his drug problem was a disability. When GTE fired a man for carrying a loaded gun to work, he sued, claiming his disability, "chemical imbalance," caused him to carry the gun. Such suits often fail, but they cost enough to terrorize some employers into settling.

Dan Kaiser, a young employment attorney I interviewed, was gleeful about the new, lucrative opportunities the ADA gave him. "Now, you can sue in court for emotional injuries." Kaiser said. "You couldn't before. You can sue for punitive damages; you couldn't before. And you have attorney's fees, which can be enormous. . . . They'll likely be $100,000."

SOCIAL SECURITY DISABILITY

Politicians keep expanding the giveaway, rewarding more victims and thereby creating more victims. Social Security was designed to help the elderly and the severely disabled. But today checks go to young men like those I met waiting in line in San Francisco's Social Security office. Their "disability"? Addiction. A strong-looking man named Clay said he got a check because "I'm an alcoholic—smoke too much rock. Smoke weed every day. And I like my heroin, too."

I think addiction is primarily a bad habit—a lack of self-control. But the government labeled addiction a disease. Since disease isn't your fault, the kindly social workers decided addicts are entitled to monthly checks.

Most I interviewed didn't even bother to pretend they wanted the check for medicine or housing; they admitted they used it to get high. Clay said, "We should not be getting this money. But since it's there, we're going to take it."

Another man, Carter, made his $602.40 check last longer by investing it in his "business." "I take my money from the government and I deal a couple of drugs to make sure I've got money all month."

Many felt entitled to their checks. "Everybody has some sort of an addiction," said Mike. "That's society, man. You know?" He said he was willing to work, "but they won't get me a job." When I asked him how many jobs he'd applied for that week, he said, "Hey, I ain't gonna apply for a job."

If he got a job, he'd lose his check.

Dr. Mark Herbst, who ran a detox center in San Francisco, said Social Security Disability encouraged addicts to stay addicted, "because the government becomes the supplier, the enabler. . . . A check's going to encourage you to keep doing what you're doing. Why should you change?"

Why would America encourage people to act like victims? For a TV special we called "The Blame Game," we interviewed Roger Conner, who'd quit a law practice to start the American Alliance for Rights and Responsibilities, a group encouraging people to take responsibility for themselves. The victims movement "started as a way to defend the people who had been made victims by segregation, discrimination, and oppression," said Conner. "Then other groups began to see the benefits of elevating your interest to the state of civil right. And the temptation now is for people who have problems that they can cope with, with great effort, being convinced to give in and wallow in their fate as a victim."

Then the lawyers make it worse, he said, because they encourage people to sue rather than strive. The big awards make "people think, I'd be a chump if I did otherwise. If I take responsibility for what I do and for what happens to me, I'm a fool. Now, when that idea gets loose, America's in trouble. . .. People start thinking that this is the appropriate way to live. . . . Where we're headed is the notion that I never have to insure myself, protect myself, take responsibility for myself, plan for myself because there'll always be someone there to pick up the pieces. You can make demands upon the society, 'Give me my rights!' And now, everybody has rights. Nobody has responsibilities:"

MULTIPLE CHEMICAL SENSITIVITY

What taught me how far things had gone was one small workplace in Ithaca, New York. It was filled with "victims" who said they were being poisoned by the office air. This was odd, since most of the windows opened and the building was in a rural area.

But the workers were furious. They complained chemicals emanating from a new rug gave them a zillion different symptoms—memory loss, headaches, sore throats, "severe mouth infections," a "metal taste in your mouth," "shortness of breath," "burning, itching, tearing eyes."

Four said they were sick all the time. They said the building gave them a disease called multiple chemical sensitivity, or MCS. This meant they were hypersensitive; just a whiff of copier fluid could disable them. Their doctors went along, declaring them totally disabled. One of the employees, Jim Ellis, said, "My life's been ruined. My wife can't put on perfume in the house. And my son at times can't play with me."

Jim and the others worked for Tompkins County's Social Services Department, the agency charged with dispensing services to "victims." Is that a coincidence? Or does being in the "victim business" make you susceptible to becoming a victim? I think it's the latter.

The Social Services Department went out of its way to accommodate its "sick" employees. Tompkins County hired a self-professed environmental expert to test if there was anything wrong with the building. His tests found no problems, but he did point out that the office photo-copiers give off fumes. So the county installed vents to suck any fumes out of the building. One vent cost $3,000.

Not enough! said the workers. We're still sick. The environmental expert said that maybe it was the carbonless paper. This was the same paper restaurants use for credit card receipts. It's not known for "chemically assaulting" diners or waiters. Of course, there were larger amounts of the paper in the county's offices, so the cringing Tompkins County bureaucrats agreed to pay someone to photocopy every single piece of paper so these workers never had to touch it.

Not enough! said the workers. You also have to photocopy every single old form stored in the basement, and every single form that's touched carbonless paper. The county did.

Even that wasn't enough. Margaret Marks said, "I got awful sick." Her co-worker, Claudia Cinquanti, said, "I had to bring her to the emergency room:"

So the workers demanded that the county make the photocopies elsewhere offsite and keep them in storage for at least 24 hours. The county agreed, and moved all of the new carbonless paper forms into a separate storage area.

But even this accommodation wasn't sufficient, said the workers. So the county built them their own special room with its own huge ventilation system, bringing in filtered air from the outside. It installed two air purifiers, one to remove fibers, one to remove chemicals.

Were the workers finally satisfied? No. They sued under the ADA, demanding that the county pay them $800 million.

That got the county to propose even more extreme measures. Officials offered to renovate an entire wing of the building, give the new wing to the complaining workers, and move other employees out.

Not enough! the workers told me. "I am going back to work for Tompkins County, whether they like it or not," said Jim Ellis. "I don't care if they have to build a new building. They're going to accommodate me or they are going to pay."

Lonny Dolin, Tompkins County's lawyer, said, "We ripped out all of the carpeting in your rooms. We built you a scientific room. And you won't come back to work because now you say a simple Xerox paper makes you sick. That's not accommodations. They just say, 'Fix the whole building. Make it perfect or blow it up, whatever:"

The workers' lawsuits were eventually dismissed, but the legal battle cost the county a fortune.

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So what has happened here? Our government has passed a law (The Americans with Disabilities Act) which has been legally interpreted as having ground rules that no sensible, prudent businessman could assent to i.e. it is a game no businessperson with good sense would be willing to play.

For example, if you come to my office with your arm in a sling and ask me for a job ...

John Stossel: Can I ask, "Are you disabled in some way I should know about?"

Julie Janofsky: No. You cannot ask if I'm disabled, even if I come in with my arm in a sling.

John Stossel: It would be discriminatory just to ask?

Julie Janofsky: That's correct.

John Stossel: Can I ask you if you've been addicted to drugs?

Julie Janofsky: No. You cannot ask any questions about prior drug addiction.

John Stossel: Can I ask you if you're addicted now?

Julie Janofsky: Yes, but not to legal drugs. You can ask me if I'm addicted to

marijuana and cocaine now. You can't ask me if I'm addicted to Valium now, because if I'm addicted to Valium now, I'm protected under the ADA.

How are employers supposed to understand this?

So what is a business owner to do? Either be willing to lie (or ask other employees to lie for him) or refuse to be an employer. Either be willing to lie or refuse to own any business that employs people.

This is a good example of the kind of legislation that has been coming out of our government for the last 65 years. Foolish, stupid, wrong-headed, unjust legislation. These anti-discrimination laws. They are wrong. They are foolishness. Who is behind it? People. Liberals. Politicians elected by the populace. Lawyers. One class of people that these kind of laws really benefit is lawyers. The law represents lots of business for the lawyers. And lawyers are always out looking for business. I am guessing that most of our representatives in Congress have law backgrounds.

The Left is always talking about justice. But the laws they make are the very opposite of just. They are highly unjust and unfair. They are always taking money from the honest, hardworking (in the form of taxes) and giving it to the undeserving. That is not justice. That is injustice. All of these social programs. Mostly, they don’t represent justice. They represent injustice.

Laws, courts, lawyers etc., are supposed to be about justice. But under Leftist manipulation they become instruments of injustice. The incentives become the opposite from what they should be. They reward the lazy and manipulative and penalize the honest and industrious. The incentives are perverse.

23 June 2024