From the Future of Freedom Foundation –
The Failure of the Americans with Disabilities Act
by James Bovard
The Americans with Disabilities Act was enacted 25 years ago. It promised a brave new era of equality and freedom. Instead, it has spawned endless lawsuits and absurd federal decrees while harming some of the people it sought to relieve.
The original law was badly drafted and subsequent amendments and administrative decrees have made it far worse. The 1990 ADA defined disability as “a physical or mental impairment that substantially limits one or more of the major life activities” — a far broader definition than what previously prevailed in the statute book. In 2008, Congress vastly expanded that definition to include people with diabetes, depression, heart disease, or cancer, as well as people who have significant troubles “standing, sitting, reaching, lifting, bending, reading, concentrating, thinking, communicating and interacting with others.” The EEOC decreed last year that even pregnancy can often qualify as a disability that entitles a person to special treatment.
The ADA is known as “Attorney’s Dreams Answered” because it has spurred hundreds of thousands of lawsuits, often for violations of arcane architectural standards. As early as 1995, one federal judge denounced an ADA lawsuit as “a blatant attempt to extort money” — something for which the law is now notorious. A California P.F. Chang restaurant was sued because the coat hook on the inside door of an accessible toilet stall was at an improper height. The New York Times reported in 2012 that the ADA had unleashed a “flood of lawsuits” against New York City delis, bagel shops, flower shops, and other businesses that many people considered nothing more than “ambulance chasing.” Miami lawyer Michael Casey observed that many ADA claims are “a legal form of extortion, and the ADA is all-purpose extortion.”
Barack Obama declared in July that “thanks to the ADA, the places that comprise our shared American life — schools, workplaces, movie theaters, courthouses, buses, baseball stadiums, national parks — they truly belong to everyone.” But workplaces do not “belong to everyone” — they are mostly privately owned, but the feds have often used the ADA to commandeer them. For instance, the Justice Department dictated exactly how miniature golf courses must be configured and slanted for the ease of wheelchair users.
Many ADA decrees defy common sense. The Los Angeles Disabled Access Appeals Commission invoked the ADA to force the Odd Ball Cabaret, a strip joint, to close a shower stall on its stage. The commission ruled that since the stall would not be accessible to a stripper in a wheelchair, the business discriminated against disabled women. It didn’t matter that there were no wheelchair-bound strippers.
The ADA also provides “freedom” to the handicapped by sacrificing other people’s safety. The EEOC sued United Parcel Service in 1997 for refusing to hire one-eyed drivers for its big trucks. EEOC lawyer Bill Tamayo told Traffic World, “If they [UPS] feel that these people cannot do the job, then let them prove it. Don’t assume that people with one eye cannot drive.” Yet, the National Transportation Safety Board prohibits one-eyed drivers from driving any truck above 10,000 pounds. “Fairness” apparently obliges people to let themselves get killed by truck drivers with little or no depth perception.
The Young Men’s Christian Association (YMCA) was sued for $20 million by David Schultz, a deaf lifeguard, who was dismissed after the YMCA, seeking to comply with the ADA, established stricter guidelines on who could be a lifeguard. The YMCA ruled that lifeguards must be able to “hear noises and distress signals”; Mr. Schultz is “profoundly deaf” but claims to have “enhanced visual alertness.” Perhaps a “reasonable accommodation” would be to require everyone who goes swimming at the YMCA to learn sign language and promise not to go under for the third time until they have caught the lifeguard’s eye.
While many Americans initially supported the ADA to help people with severe physical handicaps, claims of mental, emotional, and psychological handicaps have exploded, thanks to the law. A 1999 Surgeon General’s report declared that “22 percent of the population has a diagnosable mental disorder.” People claiming to suffer from depression account for the most common “mental disability” complaint. The Census Bureau reported that 7 million adults claim “being frequently depressed or anxious such that it interfered with ordinary activities.”
The EEOC issued rules in 1997 that may compel employers to accommodate workers taking anti-depressants by letting them arrive later in the morning or provide time off for workers who announce they are “depressed and stressed.” The ADA is degenerating into a federal entitlement program for people who claim to be unhappy — with the bill sent to whoever happens to be paying their salary at the time.
A federal court ruled in 2013 that anxiety over potentially getting fired qualifies as a sufficient disability — thus making terminating an underperforming teacher a violation of the ADA. An Ohio high- school teacher claimed she was disabled by “pedophobia” (fear of children) and unable to accept reassignment to a middle school (a federal appeals court disagreed).
Many colleges have been roiled by masses of students claiming to be disabled by little more than fear of hard work or bad grades. According to the National Center for Learning Disabilities, “15-20 percent of the U.S. population has some sort of learning disability.” In the first five years after the ADA was enacted, the number of Boston University students requesting disabilities accommodations rose tenfold.
The EEOC announced in 1999 that companies must allow disabled employees “to work at home as a reasonable accommodation.” As Human Resources magazine noted, “EEOC guidelines and recent court decisions will force employers to justify their attendance requirements in ADA cases and reconsider attendance rules.”
The ADA’s vagueness spurs many wacky claims that employers must spend tens of thousands of dollars to rebuff. A school custodian claimed that he had been fired because of a hearing problem; a court rejected his claim because the same guy had terrorized other employees, in some cases making death threats. (He was also fired in part because he was running an ADA consulting business on the side during his school job.)
The ADA has made it far more difficult for employers to deal with alcohol-abusing employees who could pose a threat to themselves, co-workers, or customers. An Oregon police officer who was fired after he crashed his undercover car while intoxicated sued for $6 million in damages, claiming the ADA protected him because of his alcoholism. The ADA also spurred Northwest Airlines to rehire an airplane pilot who had been fired after being caught flying a passenger jet while legally drunk. Roger Clegg of the Center for Equal Opportunity observed after the Justice Department intervened, “A bar in Illinois agreed to modify its policy of refusing to serve alcohol to customers who appear to be drunk based on the way they walk because a customer with Parkinson’s disease had been refused service.”
When Congress enacted the ADA in 1990, probably no one was expecting that the law would compel schools to prohibit kids from bringing peanut butter sandwiches for their lunch. But after food allergies were recognized as a bona fide disability, some schools have done exactly that.
President Obama declared, “The ADA offered millions of people the opportunity to earn a living and help support their families.” But the ADA has actually been a disaster at helping the disabled find work and become financially self-reliant. The percentage of disabled who are employed has fallen sharply since the ADA was enacted. A Massachusetts Institute of Technology study concluded that the ADA reduced employment “of disabled men of all working ages and all disabled women under age 40.” Russell Redenbaugh, a blind businessman who was a member of the U.S. Civil Rights Commission, warned in the late 1990s, “My own fear is that the ADA implementing regulations can have a chilling effect on the hiring of the disabled.”
While the feds are twisting arms to try to boost disabled employment, federal disability payments subvert that goal by rewarding people with borderline conditions to stay out of the work force and enjoy tax-free income. Obama’s Social Security Administration is even giving disability payments to Puerto Ricans whose only handicap is lack of English fluency — even though most of the work on that island is conducted in Spanish. That is typical of the schizophrenia that has long plagued federal disability policy. Office of Personnel Management chief Don Devine told me in 1985, “We allow some employees to retire on disability who have much less severe handicaps than many of those we encourage the agencies to hire.”
The ADA is essentially a federal command for people to treat certain other people “nice” — with harsh penalties for any behavior considered not nice — and with niceness defined on a case-by-case basis through endless court cases and complaint settlements.
The ADA illustrates how the moral ideals and goodwill of the American people toward a group that most people want to help are exploited by politicians and government bureaucrats. Once that good-will supposedly gets canonized in the law, the sky is the limit to how much power government can extort. The more benefits the government mandates, the more incentive people have to declare themselves disabled. A policy designed to help the disabled instead mushrooms the number of people claiming to need help. University of Rochester professor of economics Walter Y. Oi (who himself is blind) observed, “The ADA will result in an inflated population of disabled persons whose welfare will become increasingly dependent upon an ever-growing federal bureaucracy.”
American attitudes toward the disabled have become far more compassionate, humane, and rational in the last half-century. The ADA, by sowing so much unnecessary conflict, threatens this progress. It is time to admit that relying on a federal iron fist has subverted freedom and badly served America’s disabled. Good intentions are no excuse for perpetual legal chaos.
[ published in the October 2015 edition of FFF’s monthly journal, Future of Freedom]
On Twitter @jimbovard