JAMES BOVARD
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Playboy
October 2000
HEADLINE: FEELING YOUR PAIN : The National Abuse of the Americans with Disabilities Act.
BYLINE: BOVARD, JAMES
A decade ago, Congress passed the Americans With Disabilities Act. The law has helped thousands of disabled people live better lives, especially in the areas of housing and employment. Some studies showed that before the ADA, more than 70 percent of the disabled were unemployed.
At the same time, the ADA has produced its share of tragicomedy. Before the U.S. Supreme Court narrowed the law this past November, workers who had been dismissed or turned down for jobs and who had poor vision or high blood pressure had used the act to sue for compensation. The largest percentage of the 3965 ADA complaints made to the government in fiscal 1999 involved back and other orthopedic impairments. Claims for emotional or psychiatric problems such as anxiety disorder and depression are close behind and growing.
In 1997 the Equal Employment Opportunity Commission distributed "enforcement guidance" on how the ADA should be applied to citizens with mental disabilities. "Mental impairments," the EEOC declared, "restrict major life activities such as learning, thinking, concentrating, interacting with others, caring for oneself, speaking, performing manual tasks or working." The agency continued: "An impairment substantially limits an individual's ability to concentrate. An individual would be substantially limited if he or she were easily and frequently distracted, meaning that his/her attention was frequently drawn to irrelevant sights or sounds or to intrusive thoughts."
For many cubicle dwellers in corporate America this is practically a description of daily life. Feeling down? Take two Prozacs and call a lawyer in the morning.
Aryeh Motzkin, a 60-year-old philosophy professor, lost his job at Boston University following allegations that he sexually assaulted a female professor and sexually harassed at least three students. Motzkin denied the charges but admitted that the tranquilizers and antidepressants he was taking "loosened his inhibitions." He sued BU for violating the ADA. Motzkin claimed that once students complained about his behavior the university knew of his handicap and was obligated to help him deal with it.
A government clerk in Howard County, Maryland was fired after repeated rude outbursts and loud denunciations of her supervisors. She sued, claiming the firing violated her civil rights because she was a manic-depressive and that the employer was obliged to strip her job of its inherent stress.
A Massachusetts truck driver sued under the ADA, demanding he be permitted to drive special routes to accommodate his fear of crossing bridges. The company claimed he had been fired after he was caught falsifying federally required travel logs.
A Madison, Wisconsin file clerk sued because, she said, her employer refused to provide reasonable accommodation for her narcolepsy. The woman was routinely late for work and had sought permission to continue arriving late.
In 1998 a federal appeals court ruled that Marilyn Bartlett, an applicant for the New York bar exam, was entitled to reasonable accommodations because she could read only "slowly, haltingly and laboriously." The New York Times reported that Bartlett "had asked for extended time on the exam, permission to tape-record her essays and the opportunity to circle multiple-choice answers in the test booklet rather than use the computerized answer sheet." For her fifth try, the state bar paid for an assistant to read Bartlett the questions in a separate room. After Bartlett again flunked, she blamed the assistant for distracting her by eating snack food.
ADA access police are trolling for violators across the land:
The city of Bellevue, Washington threatened to fine a strip club $4500 because it did not have a wheelchair lift attached to the stage. An exasperated representative of the company that hires the strippers said of the government policy: "If you can't dance, why should you even be onstage?"
The ADA brings out the Justice Department's intemperate side. After Justice intervened, a bar in Illinois changed its policy of refusing to sell drinks to customers who appear to be drunk based on the way they walk. The reason: A customer with Parkinson's disease had been refused service.
A publisher terminated Robert Johnson because he allegedly mumbled on the telephone during a telemarketing training course. Johnson denied that he mumbled and sued the publisher, claiming that the company was biased against him because he was missing 18 teeth. A federal appeals court upheld his suit, noting that "unlike Johnson, the Americans With Disabilities Act has teeth."
The federal Department of Transportation in 1998 proposed peanut-free zones on airplanes to protect those who are allergic to peanuts. Some schools have banned peanut butter from their cafeterias because of fears that peanut allergies might qualify as a disability under the ADA. Other school systems have responded to the threat of disability suits by prohibiting children from bringing peanut butter sandwiches or other peanut products to school.
THE RIGHT TO CRASH
Public safety precautions have become potential federal crimes. The ADA stated that disabled citizens must be accommodated unless doing so would result in a "direct threat" to the health and well-being of other people. But for the EEOC and the Justice Department, nothing is more threatening than unequal treatment.
In 1997 the EEOC won a $5.5 million verdict against Ryder Systems. The company had removed a truck driver after he suffered an epileptic seizure on the job. The driver took a job with another firm, had a seizure while driving, and crashed into a tree.
The EEOC sued Bell Helicopter Textron because the company fired an epileptic after he had a seizure while working as a rotary shaper operator.
The EEOC sued Amego, Inc. after it fired a woman suffering from depression and bulimia who attempted suicide with prescription medicine. She had been in charge of ordering and administering medication at the company's day treatment program for autistic and behaviorally disordered people.
The ADA protects people with alcohol and illicit drug problems as long as they can prove they are recovering or are seeking treatment--or they make some plausible excuse for their behavior. Thanks to the ADA, Northwest Airlines rehired an airplane pilot who had been fired after he was caught flying a passenger jet while legally drunk. The pilot entered a rehab program, then got his job back.
Concerns about safety have created a double bind for corporate America. After the Exxon Valdez hit a reef and dumped 11 million gallons of oil along the Alaskan coast in 1989, the Justice Department sued Exxon for allowing a former alcoholic to captain the ship. The oil company adopted a strict policy that banned "all employees who currently have a substance abuse problem and all employees who have a history of substance abuse" from working in any position in which "there is a high exposure to catastrophic public, environmental or employee incidents and there is either no direct supervision or very limited supervision." Roughly 10 percent of Exxon's positions were placed in this category.
The EEOC was outraged. Chairman Gilbert Casellas complained that the policy was "based on irrational fears or stereotypes about individuals with a record of past substance abuse." The EEOC sued, demanding that Exxon do an "individualized assessment" for each rehabilitated addict seeking a high-risk job and reassign them only if they posed a "direct threat" to the health or safety of co-workers. The EEOC did not specify that each former addict or alcoholic should be allowed to crash a tanker before being presumed unfit for such tasks.
The ADA has had a major effect on policies aimed to prevent the spread of contagious diseases. Because people with such diseases are perceived to be disabled, they fall under the protection of the act, and the onus falls on anyone seeking to minimize the spread of the disease.
In a 1993 speech marking World AIDS Day, Attorney General Janet Reno declared, "No American, including those with AIDS, should be made to suffer discrimination in the workplace or in the doctor's office." The Justice Department warned that dentists who take extra precautions while treating HIV patients would be breaking the law. Minimizing public prejudice against people with infectious diseases is now more important than minimizing the spread of the disease.
The Supreme Court in 1998 heard the case of a Maine dentist, Randon Bragdon, who was accused of violating the ADA because he refused to fill the cavity of an HIV-positive patient in his office. Instead, he offered to treat her at a hospital.
The patient sued, claiming Bragdon had violated her civil rights by not treating her in the same way as other patients. The Justice Department, in its brief, insisted that Bragdon had no right to refuse to treat the patient in his office, because the risks to him and his staff were not significant enough to override the ADA's imperatives. Yet the federal Centers for Disease Control had reported in 1994 that 37 health care practitioners had been infected while treating HIV-positive patients, including seven suspected occupational transmissions to dental workers.
It's estimated that dentists suffer 1.5 accidental needle sticks per 100 injections. The Food and Drug Administration in 1992 ordered blood banks not to accept donations from anyone who had been directly exposed to the blood of anyone with HIV in the previous year. As Bragdon's brief asked, "If the blood bank may deem the risk significant, why not the dentist?" Refusing to allow the dentist to take precautions when treating an HIV-positive patient also places the dentist's other patients at greater risk.
The patient was victorious. The Court effectively ruled that politically correct dentistry is more important than dead dentists.
The current policies are driven by concern about prejudice against people with HIV, yet the same policies make it far more difficult to restrict public exposures to medical professionals with hepatitis. While the risk of transmitting HIV in a medical setting is low, the risk of transmitting hepatitis is high. One UCLA surgeon spread hepatitis to 18 heart patients in the early Nineties. Even though the hospital knew the surgeon was infected, he was permitted to continue operating with no warning to his patients. That decision was, after all, in compliance with federal guidelines.
The ADA has been nicknamed Attorneys' Dreams Answered. The National Federation of Independent Business has estimated that companies spend an average of $12,000 in legal fees to defend themselves against each ADA suit. The cost can rise to $100,000 if the case goes to a jury. Because the costs of defending against suits are high and the potential penalties are staggering, companies often settle. Miami lawyer Michael Casey notes that many ADA claims are "a legal form of extortion, and the ADA is all-purpose extortion."
Bovard is the author of Feeling Your Pain: The Explosion and Abuse of Government Power During the Clinton-Gore Years (St. Martin's Press).