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.
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.
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.
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.
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
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.
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.
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.
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."
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
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.
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.
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.
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.
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."
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."
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.
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."
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?
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.
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.
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.
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 juris-prudentially 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.
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.
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.
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
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.
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.