Commentary

Counterpoint on ADA and HIV

By Edward L. Hudgins
This point/counterpoint appeared in Physician’s Weekly on May 24, 1999.
An asymptomatic HIV-positive person should not be seen as legally disabled. The Supreme Court ruled that HIV infection could affect a person’s ability to reproduce, which made them disabled. Is this really what Congress intended in the ADA? It may be the law of the land, but it’s bad law. The Court’s ruling points out the flaws in the ADA. What next? Will the ADA be extended to people with asymptomatic genetic conditions? To the seriously emotionally unstable?

Congress’ net with the ADA went far beyond what we would traditionally call disabilities. The ADA begins with the statement that about 45 million Americans have disabilities. Yet fewer than four million are legally blind, deaf, or are in wheelchairs.

The ADA creates special privileges for certain citizens and requires employers to treat them in a preferential way. The law says “reasonable accommodation.” However, federal bureaucrats who determine what is reasonable are anything but reasonable.

The ADA definition of disability says, among other things, that there must be an impairment of a major life function. This could make virtually everyone over 65 disabled, because major life functions deteriorate after 65.

Employers have found themselves having to make accommodations that are costly and simply inappropriate. Back problems are currently the single largest category of complaint about employment discrimination.

Though more than 90% of cases are thrown out or adjudicated as not valid, 15,000 to 20,000 employment discrimination complaints are filed each year based on a disability. My research indicates that valid or not, an ADA complaint usually requires at least $10,000 in legal bills. That indicates how bad this law is and that it shouldn’t be widened

Edward L. Hudgins is director of regulatory studies at the Cato Institute.