Commentary

Judging the ADA

By Edward L. Hudgins
January 22, 2002

The Supreme Court’s recent ruling on the Americans with Disabilities Act (ADA) of 1990 was right on the mark because the ADA itself is so far off the mark. This Act was meant to help people with disabilities but it merely unleashed a flood of nuisance lawsuits. The Court’s decision might help rebuild some much-needed legal dikes.

The case concerned a worker in a Toyota plant who developed carpal tunnel syndrome, which limited her ability to perform certain jobs with her hands. She was transferred to an inspector job that required less dexterity. But when the job was changed to require her and other workers in that position to wipe the cars they were inspecting, a job she didn’t think she could do, she sued. So were the Toyota folks supposed to provide another person to stand beside her to perform the part of the job she could not do? Or perhaps reorganize the assembly line to meet her needs?

Under the ADA, individuals are considered “disabled” if they have an impairment of a major life function. The Supreme Court ruled that the inability to do some particular job does not mean that one is impaired in such functions. Thus the Toyota worker was not covered by the ADA.

But that case points out what a counter-productive law the ADA is. A stated purpose of the ADA was to help the disabled obtain or retain jobs, on the assumption that a disabled person can still be employed in many productive ways. For example, an individual in a wheelchair could still type, answer phones or do almost any kind of desk work. But the law requires employers to provide “reasonable accommodations” for such a worker. What is reasonable? Redesigning an assembly line? Unfortunately, bureaucrats, political appointees and judges, about as unreasonable a lot as you could find, make those decisions.

Modifying a desk for an individual in a wheelchair probably seems reasonable to most people. But several lower-level employees in one office building in Ithaca, New York, claimed to have multiple chemical sensitivity syndrome, a condition that most physicians think is more in people’s heads than in their bodies. They claimed to be allergic to everything. The employer had to spend a small fortune creating a clean room that would match those of a hospital. Reasonable?

Fortunately, in over 90 percent of the nearly 20,000 ADA discrimination cases filed each year at the Equal Opportunity Employment Commission, the plaintiffs do not win. That’s the sign of a bad law. It generates thousands of bogus lawsuits and each innocent enterprise is stuck with huge legal bills, helping not the disabled but predatory lawyers.

With the ADA, members of Congress meant to show how compassionate they were towards people with disabilities. But Congress should have used its brain as well as its heart. It avoided the tough legislative work of defining exactly what the Act meant and thinking through the adverse unintended consequences that the Act might produce.

But, in fact, the ADA was disingenuous from the start. It claimed, for example, that there were 43 million Americans with disabilities. But there are about 3 million to 4 million Americans who are legally blind, deaf or who use wheelchairs - individuals usually thought to have handicaps. So why is the ADA number 10 times higher? Where do the other tens of millions come from? The ADA’s open-ended definition of a disability as “impairment of a major life function” is so broad that it can include a variety of conditions and ailments. Getting old, for example, usually involves the impairment of major life functions. So most seniors could be covered by the ADA.

How well is the ADA doing in helping the handicapped in the job market? At the time of its passage, only about one-third of individuals with disabilities had jobs. Today, unfortunately, that number has not changed significantly. This is probably because the ADA discourages companies from hiring the handicapped. What if an employer hires a person with a disability and, for reasons unrelated to the handicap, that worker just doesn’t work out? If the employer dismisses the worker, the worker is likely to sue under the ADA for discrimination. That means bad publicity and big legal bills for the employer. So individuals with real disabilities who still may be hired because of the good work they could do are put at a disadvantage by the ADA.

The Supreme Court acted correctly in the recent ADA case, limiting the ways the Act handicaps freedom.

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