Talking Sense About the ADA

Talking Sense About the ADA

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

<[email protected]>.