Talking Sense about the ADA

From the Editor: Every time you turn around these days someone seems to be claiming that the Americans with Disabilities Act (ADA) provides a perfectly absurd protection or makes some sensible action illegal. Don't get me wrong; many, many disabled people need real protection from discriminatory behavior, and lots of the actions of employers and members of the public toward people with disabilities are stupid and unconscionable. But increasingly disabled people appear to hope that the ADA will allow them to get or keep jobs they can't do competitively or force employers to lower their standards or compromise safety in order to create or preserve a job for a person with a disability.

As this situation has evolved, the big losers have been people with severe disabilities because we are the ones who really do often need creative rethinking of old ways of doing things and substantial commitment to genuine access to jobs and workplaces. Employers who have heard horror stories from colleagues and had arguments with or threats of lawsuits from disabled people making impossible demands are unlikely to go out of their way to make room for a new blind or deaf employee.

The following column appeared in the February 14, 1999, edition of the St. Petersburg Times, copyright 1999. It speaks for itself:

Blind Commissioner: Disabilities Act a Hindrance

by Robin Blumner

When a blind man attacks aspects of the Americans with Disabilities Act as hurting rather than helping the disabled, it's worth taking notice. That's especially true when the man is a member of the U.S. Civil Rights Commission.

Meet Commissioner Russell Redenbaugh, who was blinded and lost most of the use of his hands in an explosion at seventeen, while building a rocket in his garage.

He is the only disabled member on the CRC and the only member to write a separate dissent from a recent commission report lauding the value of the ADA. In it he points out, "With respect to employment of the severely disabled, the effects of the ADA are completely disappointing."

He observes that the law, enacted in 1990 and designed to grease the entry of the disabled into the labor market, has done just the opposite. Employment of the severely disabled has gone down, not up. A Harris survey conducted last year shows that 71 percent of the disabled of working age are unemployed, compared with 66 percent in 1986, four years before the ADA was passed. And that's despite today's booming economy and low general unemployment.

Redenbaugh thinks the law's abuses have insulated disabled employees from being fired because they'll sue, which means employers avoid hiring them in the first place.

"In 1969," Redenbaugh notes, "I was hired by a Philadelphia investment firm on the basis that, if it didn't work, they would call it off--‘no harm, no foul.' Today, we could not make that contract and expect it to stick without potential legal liabilities."

The ADA prohibits employment discrimination against someone with a disability, defined as a significant impairment to one or more major life activities.

Yet, rather than helping people with classic disabilities like blindness and paraplegia, a significant number of employment discrimination claims are being filed by people with boutique disabilities like attention-deficit disorder and personality disorders. Through Alice-in-Wonderland logic, the law allows people fired for doing a bad job to turn around and sue their employers, claiming their incompetence is a disability.

In his dissent Redenbaugh cited numerous examples where the ADA was used as a legal tool for incompetents to try to hold onto their jobs: A woman with attention-deficit disorder, who was fired for failing to keep up with paperwork, sued her employer for not giving her extra time; a man who was fired for exhibiting threatening behavior sued his employer, claiming his lack of control was due to his alcoholism, a covered disability under the ADA; a secretary suffering from depression sued her employer for his refusal to allow her to work at home or grant her an indefinite leave. She said he failed to accommodate her disability.

Employers can be sued even if they have safety-related reasons for their employment decisions. In January, 1997, the Equal Employment Opportunity Commission won a $5.5 million damage award for a Ryder Systems truck driver who was removed from his position after he suffered an epileptic seizure. He was later hired by another company, had a seizure while driving, and smashed into a tree.

The law also requires that reasonable accommodations be made for disabled employees. But there is often nothing reasonable about what employees demand of employers. In his book, The Excuse Factory, about the excesses of the ADA, Walter Olson says, "Without ever debating it as such, Congress seems to have devised a general federal law allowing workers to challenge uncomfortable working conditions—factories that are too hot or cold or drafty, schedules that are too demanding. Since arthritis sufferers often experience ‘morning stiffness,' employers should expect to allow them to show up late on their bad days, one ADA expert proposes."

Redenbaugh bemoans these kinds of absurdities, saying, "They all help illustrate the extent to which the definitions and concepts of the ADA have been expanded in almost every way imaginable, with the resultant trivialization of disabilities."

The part of the Civil Rights Commission's ADA report Redenbaugh objects to most is its persistent call for the Equal Employment Opportunity Commission to promulgate more regulations to clear up the law's ambiguities. It also calls for the Equal Employment Opportunity Commission to "develop the law through its litigation activities." Redenbaugh answers that any ambiguities should be settled by Congress, not an unaccountable regulatory agency. "The role of the federal agencies is not to develop or shape the law but rather to carry out the law," Redenbaugh writes.

His courageous, clearheaded stance has not earned him any prizes. However, his dissent was persuasive enough that two of his colleagues joined him in voting against accepting the Civil Rights Commission report on the ADA. The report's approval squeezed by with a four to three vote. Redenbaugh may be totally blind, but he's the one on the commission who sees most clearly.

Robin Blumner writes for the St. Petersburg Times. Her e-mail address is <blumner@sptimes.com>.