It takes a shameless liar or a blooming idiot — take your pick — to
come to the defense of one of the most destructive pieces of legislation
passed in the last two decades. I’m talking of the regulatory madness
called the Americans
With Disabilities Act, passed at the urging of the elder Bush and the
Dole, to their everlasting disgrace.
The ADA enshrined federal agencies and courtrooms as de facto
dictators over all architectural plans in the private economy and
poisoned every hiring and promotion decision with the threat of
litigation. It has made it difficult to fire dangerous employees and
given incompetents rights their poor employers do not have. To top it,
it has increased unemployment among the truly disabled, and converted
public attitudes toward them from empathy to distrust and worse.
Who hasn’t damned the empty disabled parking slots that pockmark the
country, thanks to the Feds? In contrast, a sign placed by private
enterprise at my local grocery store — in pretty pink and blue, adorned
with a stork — reserves a space for expectant mothers and engenders
feelings of benevolence. No, women in late pregnancy may not park in the
government’s spaces because they don’t have the required government
stickers on their cars.
Clinton has declared the ADA a “monument to freedom,” which suggests
he is, well, confused about the meaning of that term. And now Albert R.
Hunt of the Wall Street Journal, a diehard defender of the omnipotent
state, has declared that the law “has won widespread acceptance from the
public and most businesses.” The law, he tells us, “has not only not
caused economic hardship but is generating a more productive and
Reading this, I have visions of Stalin announcing that the workers
and peasants, and especially the factory and farm managers, are
celebrating the passage of the new Five-Year Plan, and look forward to
working toward the total victory of socialism. I’m sure Stalin’s cronies
couldn’t have found anyone to disagree.
The ADA is “productive”? That suggests an underlying theory that
courts and bureaucrats know better than businesses and their
stockholders how to improve the bottom line. If a business has to do
anything under duress, chances are it is hurting, and not helping,
business. The one exception is that large, established corporations are
often willing to absorb higher costs because the same costs can cripple
their smaller competitors. In this case, big government and big business
work hand in hand.
The reality for most everybody else is that the ADA is a constant
source of irritation. Employers can no longer ask questions of
applicants that might reveal a disability. And a “disability” includes
factors like insanity, a propensity towards violence or forgetfulness,
or even an inability to read with proficiency. You can’t inquire whether
the person has a problem with drugs or alcohol. If the employer asks
such questions, he is subject to costly litigation. Where are the
free-speech advocates when we need them?
Once hired, employers can no longer legally insist that employees
show up on time; after all, they may be perpetually late because they
are taking antidepressants. In one famous case, UPS was sued for not
allowing a man with only one eye to drive a delivery truck, even though
the safety implications are manifest. The EEOC — which might be seen as
the land of the blind — made the one-eyed man king as opposed to the
public, who might be threatened, or the company, which could be sued
over his accidents. In another case, the EEOC said restaurants couldn’t
refuse to hire a person with an infectious disease. Nor can firms
discriminate on grounds of obesity, refusal to bathe, bad temper, and
Wherever possible, therefore, employers tend to shun disabled
employees, which is why even the official figures reveal a higher
unemployment rate among authentically disabled people than before the
act passed. Because of the mandate that endlessly escalating
“accommodations” be provided, and that these costs not be paid at the
expense of the employee’s salary, disabled employees are far costlier to
hire than before. For example, the EEOC says that an employee with no
hands must be accommodated with another employee to provide manual
dexterity. Moreover, disabled people are perceived as walking lawsuits.
Hunt says that the lawsuits are no big deal. After all, 90 percent of
the cases brought before the EEOC are thrown out and “of the cases that
go to court, the defendants, usually businesses, win an astounding 98
percent of the time.” This statement illustrates fantastic ignorance of
the way the system works. That the EEOC has to throw out 90 percent of
the cases is a perfect illustration of how litigious the ADA has made
employees. Anyone with a quibble against the boss calls the government’s
Most of the time, it is enough to threaten a lawsuit to force the
employer to settle, with cash, a payraise, or absurd levels of
accommodation (“OK, you don’t have to show up to work on time”). In the
rare case in which a businessman refuses to settle and goes into court,
he is darn sure that he will win, and that the costs of litigation will
be lower than the costs of settlement. Thus the 98 percent figure.
Hunt’s supposed proof illustrates the opposite of his point.
Hunt further cites as evidence of the law’s success that no one in
Congress dares to suggest the law be repealed. Well, considering that
only 28 House members and six Senators dared vote against this law in
the first place, it is hardly surprising that politicians are proving
gutless once again. No one wants to be accused of insensitivity to
disabled people, which is how Congress was browbeaten into passing this
outrageously intrusive and unworkable bill to begin with.
The ADA is utterly incompatible with a free society, which has
ironclad rules against interfering with the right of free contract
between employers and employees. In a free market absent any labor
regulations on business, disabled employees would become a benefit
instead of a drain.
But in the upside down world of Clinton and Hunt, and Bush and Dole,
ADA equals freedom and the market economy is nothing but an oppressor of
people’s rights. A more accurate description comes from James Bovard,
who writes in his new book Freedom in Chains that “The ADA symbolizes a
‘freedom’ based on maximizing the number of legal clubs that politically
favored groups can use against everyone else.”