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Subverting Freedom through Benevolence


President Bill Clinton declared on July 26, 1994: “The Americans with Disabilities Act is a national monument to freedom. Contained within its broad pillars of independence, inclusion, and empowerment is the core ideal of equality that has defined this country since its beginnings.”

In reality, the ADA has become a symbol of the confused, paternalistic, interventionist concept of modern freedom — a freedom based solely on government’s twisting some people’s arms, grabbing some people’s wallets, and risking some people’s lives to provide special treatment to others.

The Americans with Disabilities Act was enacted in 1990. Concocted by Congress and the EEOC with the best of intentions, the law allows bureaucrats and lawyers to tyrannize private businesses with absurd demands. The ADA has opened up a Pandora’s box of lunatic lawsuits and federal rulings.

The Young Men Christians’ Association (YMCA) is being 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.”

Schultz is “profoundly deaf” but claims to have “enhanced visual alertness.” Schultz complained that the YMCA “chose to prejudge my capabilities rather than fairly judge them. That is what prejudice is all about.” YMCA spokesman Steve Hockensmith told The Los Angeles Times : “This is a situation where the Y had a choice to make between the safety of the people in its pools and the desire of an individual to be a lifeguard.” 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 had caught the lifeguard’s eye.

YMCA officials in Massachusetts dissented from the national office’s ruling and argued that more should be done to help staffers such as Schultz “reach their full potential,” as the Times reported. This epitomizes how the ADA is sacrificing some people’s safety to other people’s self-esteem.

The Disabilities Act has led many states and localities to change their hiring requirements for police officers. As a result, sliding scales have often been devised that created much easier physical fitness tests for older and female applicants. Edward Guzdek, president of the Police Conference of New York, an organization representing over 20,000 New York cops, condemned the new hiring standards:

“We are totally opposed to it. They say older people can do the job, then they relax the standards as you get older. They say women can do the job and say they’re equal, then they change the standards for women. . . . It’s a shame to say everybody can do our job and then have different standards for different people.”

Perhaps Congress should pass another law that requires all would-be criminals to provide “special accommodation” to the newly hired police officers by not running too fast or struggling too vigorously against an arrest.

The EEOC ruled in 1993 that obesity is a covered disability under the ADA, thereby vastly expanding the law’s coverage probably beyond what Congress intended. A 400-pound woman (not named “Big Bertha”) sued Southwest Airlines for discrimination after a ticket agent allegedly ordered her to buy a second ticket. While the woman’s feelings may have been hurt, what if the woman had ended up getting stuck in a normal coach seat in the middle of three seats — or inadvertently smothering some poor guy who happened to be trapped in the window seat next to her.

Some people have tried to turn the ADA into a Criminals’ Relief Act. Florida District Appeals Judge Eugene Garrett was nabbed shoplifting a VCR remote control. When the Florida Supreme Court ordered Garrett removed from the bench, Garrett claimed that his removal would violate the Americans with Disabilities Act. Garrett claimed he was disabled because he was “depressed” because his daughter failed to get into law school and his son was getting poor grades in school. (Garrett’s appeal was rejected.)

The ADA is extremely vague regarding what exactly is a disability or what accommodation a business must make to accommodate a disabled employee or customer. Mark Parenti, in a recent analysis for the National Legal Center, concluded that EEOC regulations “have done little to provide employers with clear, straightforward guidance on complying with the law.” Cynthia Pierre, deputy director for the EEOC Chicago district office, observed: “Accommodating a person is very individualized. We can’t tell employers, ‘You must do X in this particular situation and then you’ll have complied.’ They have to take their best shot at it.” But while employers take their “best shot” at accommodations, they are on the wrong end of the shooting gallery for the “best shots” of plaintiffs’ lawyers.

The vagueness of the law encourages federal attorneys to butt in wherever a good press release can result. The National Collegiate Athletic Association (NCAA) recently revised its regulations to cease recruiting high school athletes who were unprepared for college-level work. The Justice Department on March 1 dropped the hammer on the NCAA, outraged that its new regulations may violate the ADA because of alleged discrimination against students with learning disabilities who have not taken high school courses that would prepare them for college.

A group of deaf people in Cleveland sued the National Football League, claiming that the “blackout rule” prohibiting television broadcast of home football games that had not been sold out at least 72 hours before the game violated the rights of the hearing-impaired. (The games can be broadcast on radio, but that does not do deaf people a lot of good). A federal judge ruled in February that the blackout policy does not discriminate since it treats deaf and non-deaf people equally.

The vagueness of the law is spawning conflicting court decisions across the country. Federal judges in Iowa and Louisiana ruled that excessive job absences for female employees to seek infertility treatment were not a protected “disability” under the ADA. However, in February, a federal judge in Chicago ruled that job absences to pursue insemination should be considered a reasonable accommodation. Federal Judge James Alesia scorned previous court decisions:

“These decisions interpret “major life activities” far too narrowly. They define life activity in terms of quantity, rather than quality. In other words, because reproduction is not something that a person must do every moment of every day, it is not a major life activity. However, neither the ADA nor its implementing regulations either explicitly or impliedly defines “major life activities” by the frequency with which they occur.”

The ADA has completely nullified employers’ freedom of speech during job interviews. If an employer asks too directly about a disability, then the employer can be presumed to be discriminating against the handicapped person and be forced to pay large settlements to avoid a lawsuit.

In May 1994, the EEOC issued an official “Enforcement Guidance on Pre-Employment Disability-Related Inquiries.” Allegedly recovering alcoholics are covered by the ADA. The EEOC declared that it is legal to ask, “Do you drink alcohol?” but illegal to ask, “How much alcohol do you drink per week?” Regarding vision-impaired people, the EEOC decreed that it is legal to ask, “Do you have 20/20 corrected vision?” but illegal to ask, “What is your corrected vision?” The EEOC effectively makes the difference between a legal and illegal job interview a choice of a single word, regardless of whether the employer has any intent to discriminate.

Even in cases in which someone sues under the Disability Act and a judge or jury rejects the claim, a business can be forced to spend tens of thousands of dollars on legal fees to defend itself against an absurd claim. This is why the ADA is sometimes said to stand for “Attorneys’ Dreams Answered.”

The ADA has done little to help the severely disabled. Only 14% of ADA complaints to the EEOC so far have concerned highly visible disabilities such as blindness, deafness, or being wheelchair-bound. Handicapped-rights activist William Bolt recently noted: “The most frequent employment complaint under the ADA is from those already employed who only discover that they are disabled when facing dismissal or passed over for promotion.”

Perhaps worst of all, the Disabilities Act is not in the interest of many handicapped Americans. Medical and rehabilitation professionals seek to minimize the number of people who are truly disabled. But Congress, with the ADA, has turned disabilities into prized legal assets, something to be cultivated and flourished in courtrooms to receive financial windfalls. The ADA creates a powerful incentive to maximize the number of Americans who claim to be disabled, since the claim of disability amounts to instant empowerment in the eyes of the law. University of Rochester Professor Walter Y. Oi (who himself is blind) observes: “The ADA will result in an inflated population of disabled persons whose welfare will become increasingly dependent upon an ever growing federal bureaucracy.”

In recent decades, America has made great and laudable progress in treating the handicapped with greater respect and consideration. The ADA, however, is a step backwards. It sets up bureaucrats and judges as czars over private, voluntary agreements. And it is dishonest for the government to endow some people with the legal power to make unlimited demands from others through litigation and claim that the result is simply “equal opportunity.”

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    James Bovard is a policy adviser to The Future of Freedom Foundation. He is a USA Today columnist and has written for The New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader’s Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of Public Policy Hooligan (2012); Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book’s Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.