The 10th anniversary of the Americans with Disabilities Act is upon us, and the occasion warrants devoting some thought to the legislation. I know about the ADA because I'm an attorney and I use a wheelchair. I should feel grateful for this law meant to help disabled Americans in employment, and provide access to public facilities and transportation. So why am I unhappy?
I graduated from a good law school but finding a job has been difficult, much more difficult, than I expected. Getting interviews has not been a problem. Getting second interviews or job offers has been. Thanks to the ADA, I can physically get through most front doors. I have access to elevators that ascend to upper floors and can reach the buttons from my wheelchair. I can proceed down wide hallways and use the lever door handles to enter interview rooms. The physical obstacles have been removed, but they have been replaced with a more daunting obstacle: the employer's fear of lawsuits.
My situation is not unique. A Harris survey for the National Organization on Disability found that only 29 percent of disabled persons are employed full or part time, down from 33 percent in 1986. Is the decline because employers grown more prejudiced? I expect not. Rather, employers have found that the vague language of the ADA makes it difficult for them to comply with its provisions, thus inviting lawsuits. Edward Hudgins of the Cato Institute cites average costs as high as $75,000 to defend against job-related ADA complaints, most of which are found by the Equal Opportunity Employment Commission to be without validity. Thus it's hardly surprising that job-hunters with disabilities are viewed by employers as "lawsuits on wheels."
Consider my case as an example of a more general problem with the ADA. I might be talking to a prospective employer about my past professional experiences, or how I would attract clients and produce many billable hours. But they seem to look right through me. No doubt they are thinking about what might happen if I'm hired. "Will we have to have the library stacks lowered? Will she need a specially modified computer, or an assistant? Will she be late or miss work often? Can she get to the courthouse on a moment's notice, through rain, snow or inclement weather? Can she handle working late? How much will we have to pay for her insurance? Will she sue us if she can't play on the firm's softball team?"
An easy solution to this problem would be for the employer to ask me such questions. I would not be offended and would welcome the chance to explain my situation. Yet the ADA makes such questions illegal. And one can hardly expect a law firm to hire another law firm to formulate lawful questions that might be asked of prospective disabled employees with a variety of different disabilities. It's easier for the employer to prevent the whole legal mess by not hiring people with disabilities.
Comedian Jay Leno can help one understand the problems of an individual in a wheelchair going for a job interview. Leno maintains that after he comes on stage, audiences need a few minutes of transition time to get past the curiosity and excitement of seeing a celebrity. After that time the audience starts thinking of Jay as a regular guy, and pays attention to what he's saying rather than what he is.
My interviews start much the same way. Interviewers at first feel uncomfortable with someone in a wheelchair. Then after a few minutes they grow more at ease and begin to focus on what I'm saying. But because of the ADA, their minds will turn to potentially high-cost, negative-publicity lawsuits, and the comfort evaporates.
By inhibiting free discussion between interviewer and interviewee, the ADA also makes it difficult for me to determine whether I want to work for a particular firm or whether a prospective employer is a prejudiced, ignorant jerk. I would find this out if the interviewer asked, "How can you do anything in a wheelchair, much less represent clients in court?" While the ADA will not change the attitude of bigoted employers, it will give them, as well as more understanding employers, additional reasons for concern. Because they cannot talk openly with disabled candidates, employers are reluctant to hire them and simply hope they'll go away without a lawsuit. What employers are doing is simply declining to hire people with disabilities.
I have a difficult enough time getting past physical and attitudinal barriers related to my wheelchair without having to get past the ADA-established barrier of being viewed as a lawsuit on wheels. Some day a truly level playing field will exist for people with disabilities. But this will not occur by passing laws that cast me as a victim in need of protection.