The Mises Institute monthly, free with membership
March 1995
Volume 13, Number 3
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.
-------------------------------------------
Llewellyn H. Rockwell, Jr. is president and founder of the Ludwig von Mises Institute
Back