Editor’s note: In “Disabling America,” handicapped author Greg Perry takes aim at the myriad government regulations meant to help the disabled but which actually harm them – and all Americans subject to the rules. Subtitled “The Unintended Consequences of the Government’s Protection of the Handicapped,” Perry’s book exposes the dangerous results of the Americans with Disabilities Act and shows through personal accounts and sobering statistics that the quality of public life for the disabled hasn’t been improved since the ADA was signed into law; instead, the liberties of all Americans have been diminished considerably.
In this first of three excerpts from “Disabling America,” which is published by WND Books, Perry exposes the Americans with Disabilities Act as a behemoth, nonsensical law and shares some of the legal horror stories that have resulted from the regulation. Get your copy of Perry’s eye-opening book at ShopNetDaily.
What else would you expect from a woman who thinks her chocolate allergy entitles her to park in a handicapped space?
– Frasier Crane, “Frasier”
An indicator that a law is bad is the amount of abuse that occurs under that law’s auspices. Even further evidence of bad law is when the people in charge of that law’s jurisdiction enable, even promote, rampant abuse. This chapter exposes several instances of what some would consider being abuses of the Americans with Disabilities Act. Let me make it clear that some people, such as those initiating lawsuits like those mentioned here and those who work within the ADA’s vast organizational command structure, will disagree that these are ADA abuses; for them, they are simply justice duly meted.
Massive anecdotal evidence reveals a general trend. Such numerous case-by-case examples do suggest the existence of an underlying problem. By exposing these abuses of the ADA, I hope to show that the ADA is not only being used for ill but that the extent of that abuse indicates that this law should be rethought. I would never use anecdotal evidence alone to justify a law being good or bad. I want the conclusions I make in this book to be logical and result from a rational explanation of what is going on. Having said that, a raging pattern of abuse does require a strong review of whether a law is good or needs to be abolished completely.
Full Disclosure: I am not an attorney. I have had no formal training in law. Therefore, I have the ability to explain the ADA law’s ramifications in clear, simple-to-understand language. Be warned that due to my lack of training as a lawyer, the ADA’s consequences will make a great deal of sense to most who read “Disabling America.”
He bet his disability
The San Jose, Calif., taxpayers came to the aid of a former police officer when the Police and Fire Retirement Board gave Johnny Venzon Jr. early retirement due to his disability. Any community would rally to support a police or fire officer harmed in the line of duty. When one puts his life on the line for others, people are grateful. If a gunshot wound cripples an officer or a burning fire harms a firefighter, the wound is honorable and at the same time severely regrettable.
But what has concerned many about this situation is that Venzon and his counsel never claimed the disability due to an injury while on duty. Instead, this ex-cop was officially declared disabled due to his gambling addiction. Recall the previous chapter’s argument against the term “disability” as opposed to the clearer term “handicap.” You can see in this case why “handicap” is no longer welcome in the English language; even unscrupulous counsel (assuming any exist) would find it difficult to call a gambling addiction a handicap – unless we’re talking horse races, of course.
This case just keeps on giving. That is, giving to Venzon. The Police and Fire Retirement Board awarded him $27,000 annually for his pension after granting the early retirement. The public coffers were tapped, and the spigot was opened wide. Medical experts surfaced who stated that the ex-cop’s obsessive-compulsive gambling habit represented a pathological problem that effectively prevented him from being a police officer.
To compound taxpayer frustration, this former officer was incarcerated for burglary at the time the board granted him his early retirement and $27,000-per-year pension. Venzon claims that he was forced to steal to support his gambling addiction. Could the burglary and incarceration have stood in the way of his retirement had the board not ruled that his newly labeled disability caused him to commit burglary? Such a question is moot because the money was paid.
To say that a gambling “disability” forces one to steal is an offense to every truly handicapped, law-abiding person in the world.
ADA and AIDS
Carlo Morelli owned and managed Raviolli’s, a small pasta parlor just north of Dallas in the early 1990s. He had retired from being a busy restaurant entrepreneur and wanted to run the small business in a way that imbued a community spirit. The pasta parlor quickly expanded from the restaurant to a community center, a banquet hall and a catering operation that employed 85 people. The college town, Sherman, Texas, enjoyed the meeting place.
This was in the early days of the ADA. Morelli has told how he cheered the Americans with Disabilities Act when Congress debated the law. Three of Morelli’s family members are deaf. He said, “I thought anything we could do for disabled people would be good. If it inconvenienced us a little, it would probably be worth it.”
But after five agonizing years and a personal financial loss of $300,000, Morelli quickly learned that the ADA’s inconvenience far outweighed its benefit. He recounts, “The bureaucrats have turned this [ADA] into an ugly thing, divisive and mean, not what everyone envisioned it to be.” He continues with great wisdom: “It’s not an Americans with Disabilities Act. It’s an Americans with Excuses Act.”
A kitchen worker, Jeremy, whom Morelli employed as a dishwasher, contracted AIDS. Sores began to break out on Jeremy’s neck and arms. He had a nagging cough. Morelli expressed his concern for the employee with whom he says he got along well and whom he had no intention of firing. Word got out in the pasta parlor’s small college town, and business started dropping.
To make matters worse, Morelli says, “An AIDS patient has no immunities. That means Jeremy caught everything that was going around. When he caught a cold it darn near turned into pneumonia. TB [tuberculosis] is a problem, and I just couldn’t have someone who came into contact with every utensil in the restaurant passing along communicable diseases. That’s common sense.”
Morelli’s dilemma was three-fold: he needed to protect Jeremy, to protect his other employees and to protect his customers. Morelli asked Jeremy if he would be willing to move out of the kitchen where infections could spread and cause others trouble. Jeremy was offered a raise to do gardening and grounds work around Raviolli’s and to run errands for Morelli. Jeremy left and returned with an Equal Employment Opportunity Commission representative who told Morelli that Jeremy would stay in the kitchen.
Co-workers, out of an understandable fear of infection from an incurable communicable disease, began quitting. When word spread throughout the small community, the restaurant’s receipts dropped from $129,000 to $32,000. When Morelli asked his lawyer what it would take to defend the restaurant against the EEOC’s charges, 1 million dollars was announced as the cost. Seeing that the pockets of the ADA-empowered EEOC were far deeper than his own, Morelli closed Raviolli’s after only eight months in operation.
The closing of Raviolli’s made it unnecessary for the case to go to trial. Without a restaurant, discrimination against the disabled by the establishment could no longer be argued. Eighty employees lost their jobs, and many were forced to leave town. A community locale was closed. Jeremy neither got his raise nor was he able to keep working in the kitchen as it was no longer operating. Morelli lost $300,000 in legal fees and in costs he incurred by the closing. Customers lost food they enjoyed. The local real estate market lost in extra strain caused by the real estate that was now on the market.
The only one who had no loss was the EEOC officer. His status and job were never in danger – in fact, having gone to the mat for the disabled, his profile no doubt increased on the job.
How many situations have arisen since 1990 when President Bush signed the ADA legislation that, like Raviolli’s, never get to court? The problem with these events is that the true number of businesses and employees and customers that have been harmed by these ADA-sponsored, over-compensating, cost-ignoring accommodations can never be counted because so many cases don’t make it to the court system. Some would argue that keeping so many of these cases out of court is a plus to our bottlenecked judicial system. Such a justification is a false justification. The court system’s docket was not burdened by Morelli’s experience, but scores of other people were burdened. By not going to court where records are kept in detail, the scope, breath and depth of the ADA’s use and abuse will never fully be known.
In addition to the number of businesses that simply fold in the threat of an ADA attack, many settle before the cases get to court. If employers do fight the ADA charge, the American Bar Association has said that employers win more than 90 percent of the ADA court cases. Although the American Bar Association might term these events as wins, the defendants could beg to differ.
Such a high percentage of wins should not be considered victories by any means. Christopher Bell was one of the architects of the Americans with Disabilities Act. He now represents businesses that need to defend against ADA cases, perhaps as a penance of sorts.
Bell has said, “There absolutely is an element of intimidation. You say to an employer, ‘Gee, you can settle this for $20,000, or we can litigate it and probably win but, if we win at the summary judgment level, it might cost, oh, $30,000, $50,000, $70,000; if we win after a jury trial it might cost $125,000.’ Most businesspeople aren’t going to like paying the $20,000 settlement, but it’s a heck of a lot cheaper than the alternatives, and of course, plaintiffs’ lawyers know that. So there is tremendous economic leverage for filing a lawsuit and getting some money.”
What do you suppose the chances are that headaches caused by trying to defend against ADA lawsuits are covered under the Americans with Disabilities Act?
Frivolous legal complaints
Dick Thornburgh, a former U.S. attorney general, said in 2000 that 87 percent of the EEOC’s ADA and related complaints have been found to be frivolous or were closed for “administrative reasons” instead of going all the way to court. He sees this as a positive sign that attorneys will soon stop attempting such cases.
I don’t follow the reasoning that an 87 percent frivolous case rate is a positive percentage, but then again I am not a lawyer so I have a more difficult time seeing good in this. What an incredible cost and burden on the EEOC to have listened to, researched, debated and finally tossed out 87 percent of its cases. Just because these cases don’t get to court doesn’t mean they have zero cost. In fact, cases that don’t get to court are often a huge strain on the defendants and whatever counsel is researching the case’s justification. These massive costs could only be incurred by a governmental agency paid for by taxpayers; no private organization would have the unlimited funds needed to mess with an 87 percent frivolous caseload.
Thornburgh is also not considering the fact that from 1990 to 1991, 13,000 allegations of discrimination against the disabled were brought before the EEOC. A decade later, in 2000, the EEOC still admits that barely more than 10 percent of such cases are meritorious and worth pursuing. If such a high percentage of frivolous cases will cause a decline of filings, somebody apparently forgot to tell the American Bar Association and others who might be involved in filing these cases.
The ADA’S roar deafens
Small, low-margin establishments such as Raviolli’s and other restaurants seem to be breeding grounds for ADA cases. One busy restaurant was in need of a hostess to manage the hustle and bustle of tables as they were cleared. The hostess had to listen closely to guests’ requests, guiding them to their tables, maneuvering around the wait staff as they carried plates full of food and drinks, keeping the new guests comfortable and moving while staying out of the way of bussing staff carrying stacks of trays and dishes yelling, “Excuse me!”
Completely able-bodied employees find such a job difficult. When a deaf woman applied enthusiastically, the owner realized that due to her deafness she could fail to hear a waitress coming with a hot pot of coffee or might not hear a tray full of food coming up behind when she’s leading new guests through the diner. Having told her the risks, the owner started looking for another applicant. The deaf woman started looking for an EEOC lawyer.
Larry Elder, talk show host and author, has related this story in the past and concludes by explaining how he contacted the EEOC lawyer who represented this deaf claimant. Elder asked the lawyer how he could justify action against this restaurant. Elder explained that the owner acted out of safety and common sense for the applicant, the other employees and the customers. The lawyer responded that Congress created the ADA to get Americans to “think differently about the disabled.” By not acting out of safety and common sense for all involved? Sadly, that goal is being achieved, case upon case, lawsuit upon lawsuit.
Now, the deaf are blind
The National Football League often adheres to a blackout rule when a local stadium doesn’t fill to sold-out capacity. If a game does not sell out at least 72 hours in advance of the kick-off, the game cannot be aired in its home venue. In other words, if seats are available at the game, the NFL doesn’t want the game shown on local television because those seats are likely to remain unsold since the fans can stay at home and watch the game.
The wisdom of the blackout rule is perhaps arguable, but the NFL is the owner of its own broadcast, and if the NFL doesn’t want a game showing somewhere on television then that is its right. At least, that seemed to be the case until attorneys for a Cleveland deaf group sued the National Football League over the blackout rule. By not showing the game on television the suit claimed that the NFL violated the rights of the hearing impaired.
Dependence, independence – what’s the big difference?
So many ADA advocates want the workforce to provide independence for the disabled, no matter how much it costs and no matter how dependent the disabled employee must become on the employer. This facade of independence could be seen early when the ADA required that in some cases, “Businesses must hire people to work as readers, interpreters or travel attendants to accommodate the needs of the disabled employees.”
James Bovard points out that soon after the ADA’s signing, a large group of disabled advocacy groups showed outrage in July of 1991 that the ADA had not also required businesses to provide toilet assistants to the handicapped as a “reasonable accommodation” to achieve equal opportunity with other workers.
Taken to its extreme (comfortable territory for the ADA), consider a small kiosk-based business such as those found at malls across the country. This bathroom accommodation requirement would require two employees to be hired when normally only one non-disabled person might be able to handle the business. The second employee would be there to help whenever the disabled employee had to use the bathroom. Automatically, one-half of the population would be unable to fulfill this second position because only a second worker of the same sex would be able to enter the same bathroom to provide the help.
As a handicapped person, these kinds of stories offend my sense of dignity. A government bureaucracy, marshaled by the Department of Justice and ADA advocates, grows by leaps and bounds and invades all areas of American life. These people seek to decree that employers – regardless of their needs or business interests – give me bathroom assistance. I may not need it and I may not take advantage of such service, but the fact that it’s seriously considered as a part of the ADA umbrella gives me a creepy feeling that I can hardly shake without effort.
Why? In part, because it exposes the most obvious lie of the ADA: You cannot be independent and dependant at the same time.
The government’s claim to bring independence to the handicapped is a fib. The ADA forces changes that actually result in handicapped people becoming more dependent – dependent on legally coerced employers, government lawyers and the entire ADA complex. This does more than just give a false sense of independence; regulations that force dependence by falsely promoting independence are disingenuous, deceitful and devious.
Widen the doors or shrink the walls
By declaring obesity to be a protected job disability, the Equal Employment Opportunity Commission adds to the disability roles, increases its importance, promotes further dependence and in many ways convinces overweight people that they need to do nothing about their possible health dangers.
One man who weighed in at 410 pounds applied to the New York City Transit Authority for the job of subway train conductor. The Transit Authority passed on the applicant because he was too large to fit through the small cab doors on the train. He took the Transit Authority to court, and the courts agreed that the reasonable accommodation the Transit Authority should make was to widen every door of every conductor’s train in the system.
Many kinds of weight-based cases have been filed in the name of ending discrimination against the disabled. A Maryland teacher, Janice L. Pepperman, filed a lawsuit against the Gaithersburg school district claiming that she faced verbal taunts from other teachers. She said the taunts were based solely on her “genetic disorder.” The disorder turns out to be that she is 5 feet 4 inches tall and weighs 230 pounds. At the time of the filing, Pepperman had taken sick leave due to poor health.
Jennifer G. Hickey, in writing about this case, describes how under the EEOC’s interpretation of the ADA, the term “impairment” cannot be applied to such general characteristics as hair, eye color, height, weight or muscle tone. Therefore, just because an employee is overweight does not provide grounds for a disability-discrimination claim. An employee who is morbidly obese or suffers from a psychological disorder that causes extreme fatness, however, does have a claim. Some of these weight-based cases are being dismissed by the federal courts while others are being taken. The drumbeat to squeeze the courts’ resources marches onward.
Getting a good seat
In another heavyweight lawsuit, a 360-pound Tennessee woman sued a movie theater chain for $1.5 million for emotional distress. She said that none of the theater seats was large enough to accommodate her. She was angry that the theater’s management would not let her bring in and set up her own larger seat in the auditorium.
If every seat were wide enough to accommodate that woman, would any seats be wide enough to accommodate the 410-pound Transit Authority applicant? Probably not. If every seat were wide enough to accommodate the 410-pound Transit Authority applicant, would the less gravity-challenged movie patrons be able to reach both arm rests?
This seat-width lawsuit is not the only way the ADA has tried to harass, even devastate, the movie theater industry. By the mid-1990s, the movie theater industry had come close to financial ruin. New theaters were being built, but customers were not coming in numbers large enough to pay for them. In addition, older theaters that contained only two or three screens could not find an audience. The industry got some relief when the stadium-seating concept caught on. As the theater industry saw a chance to recover, the ADA, always sensing weakness, pounced.
AMC Entertainment, one of the leaders in providing stadium seating in most of their movie complexes, wants every moviegoer to enjoy their stadium seating, so they provide several wheelchair spaces and special seating areas about one-fourth of the way up each auditorium’s room. The areas are clearly marked and some seats are removed for the wheelchair bound. In addition, AMC provides hearing assistance devices for moviegoers who need them.
In 1999, Janet Reno’s Justice Department brought suit against AMC Entertainment. The claim said the wheelchair-bound patrons were denied good seats and were cramped in the first few rows. United States District Court Judge Florence-Marie Cooper ruled that such movie theatres with stadium seating violate the Americans with Disabilities Act:
A movie theater owner who provides wheelchair seating only in the front rows of the auditorium deprives persons with disabilities of equal access, benefits and services in violation of the Americans with Disabilities Act.
The ruling declared that AMC must provide wheelchair seating with comparable sightlines, which means all in wheelchairs need to be able to see from any row in the theater just as everybody else can. How is AMC to provide wheelchair-bound seating on every row of the theater? Each aisle would have to be wide enough to accommodate wheelchairs, and that would cut down the number of rows in the auditoriums by at least a third. In addition, middle seats of each row would have to be removed so the wheelchairs had a place. Only then could a wheelchair-bound individual sit anywhere other moviegoers sit. But ironically, the middle-of- the-row wheelchair spaces would prevent the other moviegoers from these middle seats. By demanding equality, the ADA creates inequality.
Non-ADA movie discrimination suits can now appear due to this ruling. If AMC’s handicapped patrons are discriminated against because they don’t get to sit in the upper-third of the theater, then anybody who buys a ticket to the movie late and can only find a seat in the lower-third is discriminated against. They are not given the full stadium-seating experience any more than their handicapped peers who must suffer down front with them.
Chris Stamper writes about this ruling and correctly imagines the costly nightmare for AMC and other owners who now face major renovations in thousands of auditoriums across the United States. The upper stadium seats of many auditoriums can only be reached by stairs, necessitating some kind of elevator system being squeezed into each auditorium in addition to aisles being widened and seats being removed in the upper rows.
This ruinous lawsuit hits home with your author. As you learn more about my life, you will see how and why the full exposure of the Americans with Disabilities Act is important to me. One problem is that I was born with one leg. As much as I would like to hide that fact from the ADA government workers who want to control my life, I’m disclosing the fact rather openly here.
The reason that this lawsuit against the AMC movie theatres strikes home is that this poor, crippled-up, one-legged “Disabling America” author enjoys the AMC stadium-seating experience. In fact, I have seen more movies at the Tulsa AMC theater than anybody else in the entire state. I was the first to reach their former VIP level of 15,000 points in their AMC MovieWatcher club. Due to the enormous number of movies I have seen there, I know most of the employees, and they know me.
I never could have seen so many movies at that AMC theater if an ADA official had thought to tell me first that my disability keeps me from viewing movies.
While an enjoyable night to the movies suffers (along with the entire theater industry), so does safety. Consider the case of a local YMCA chapter sued for $20 million by a “profoundly” deaf lifeguard. The YMCA assumed that lifeguards should be able to hear yells and distress signals. When, however, they sought to replace the deaf lifeguard with one who could hear cries for help, the lifeguard sought counsel.
The inclusion of the elderly in the Americans with Disabilities Act’s fluid definition of “disabled” has forced many states and municipalities to change their hiring requirements for police officers. They have been forced to put into place sliding-scale fitness tests to accommodate older and female applicants. (At the time of this writing, I could find no complaints about this ADA suggestion that all females are disabled.)
In 1995, a Coloradoan sheriff’s deputy, David Bell, was fired because he did not meet the Jefferson County “fitness-for-duty” standards. Bell contacted the Equal Employment Opportunity Commission and filed a complaint under the ADA’s statutes. Surprisingly, the suit was tossed out, but two years later Bell sued the county again. The county settled out of court for $110,000 instead of taking the case to trial.
Consider the Exxon Valdez oil-spill disaster in Alaska in 1989, allegedly caused by the tanker’s inebriated captain. Exxon later ruled that employees with histories of drug or alcohol abuse couldn’t hold safety-sensitive jobs. But the EEOC doesn’t see why drug and alcohol abuse should keep one from holding a safety-related position. Amazingly – in complete disregard for the safety of even the drug- or alcohol-abusing employee, let alone everyone else – the EEOC says such a position is discriminatory under the Americans with Disabilities Act.
Bad ideas often have deadly consequences. If one person dies after someone is hired without any regard to that person’s possible safety risk to others, the guilt falls equally on the hands of everybody who supported such absurdity. Consider the lack of wisdom shown if one hires a deaf lifeguard and someone drowns or if an unqualified police office fails to stop a crime that a more able-bodied officer could very well have prevented in time. When a government regulatory committee creates a law implemented by organizations such as the EEOC and ADA advocates without any accountability, any and all such guilt will never be admitted or identified.
Not just a can of worms but a snake pit
Is the inability to be without snakes a disability? In one case, mentioned by a guest on National Public Radio’s “Diane Rehm Show,” which was hosting a celebration of the ADA’s 10-year anniversary, an employee claimed a phobia of not being around snakes.
Citing the ADA’s protection, he requested that his employer allow him to bring his pet snake to work. I was surprised that in spite of the fact that the show aired on NPR, where absurdity is often complimented, the guest did admit that this particular claim was far-fetched. I almost beg to differ. Given the abuses that have been approved in the ADA’s short history, can you blame the snake lover for making such an attempt? Fortunately it appears the snake suit was tossed out before being heard.
Rare occurrence: The truly disabled triumphs
Much common sense in American society has been eliminated on the altar of the ADA and political correctness, the ADA’s preferred mode of transportation. So many new ways of regulating American life have arisen that, once in a while, one politically correct idea is pitted against another. The ADA is now beginning to show up as one of the parties in these contests.
For instance, how will the sexual-harassment regulations be honed over time so as not to include persons with sexual dysfunctions now considered to be disabilities? When a sexual-harassment defendant goes up against a deviant who claims his deviancy is a disability, the sexual-harassment pundits are then pitted directly against the ADA pundits, and their causes oppose one another in court. In many such cases, both sides’ attorneys win fame, peer respect and legal fees; everybody else just loses.
Having said that, once in a while when two politically correct forces clash, purely by chance, justice actually gets served. Sometimes the truly harmed come out victorious in the courts. Such a case occurred in Maryland after a father, at his own expense, built a thousand-foot brick pathway so that his daughter Leah could enjoy a nearby tributary named Glebe Creek. He built the pathway because Leah has muscular dystrophy and uses a wheelchair. The father did not request ADA-related funds to build the pathway.
The father did not ask for the highway department to install the pathway. The father did not ask for special tax provisions for the pathway. Most important, the father built the pathway on private property. The fact that the pathway was on private property did not deter the county code-enforcer who said the pathway violated the state’s Critical Area Act, which mandates a hundred-foot, no-building zone around designated bodies of water. The state’s Critical Area Commission took the case before a county circuit judge who agreed that the pathway had to be removed. The father took his case to the Maryland Court of Appeals soon afterwards. That court said the path could stay. The reason given was that the ADA grants public agencies wide latitude in accommodating people with disabilities.
If only the ADA granted private agencies and business any latitude.
Promises to break
On June 27, 2000, The National Council on Disability released a 380- page report named “Promises to Keep.” The report harshly criticized federal agencies for their poor track record in enforcing the Americans with Disabilities Act. NCD chairperson Marca Bristo said agencies had been “overly cautious” in enforcing the law and that “poor leadership” has significantly weakened the law’s impact.
How much more would have been done if these agencies were not overly cautious? I cringe after reading through some of the lawsuits brought forth under the guise of the ADA and think of what may have resulted if those who police the ADA had better, more ambitious leadership.
A fluid law
Not only has the ADA’s own definition and determination of the meaning of “disabled” changed, the law itself has changed. Recently lawmakers have begun to look at the ADA and its consequences in a new light. After more than a decade of what some would call extortion-like litigation, the Supreme Court and lawmakers have made some provisions that promise to hone the ADA somewhat. One can only hope that such measures will begin to stop the forward momentum this law has gained. Abuses such as those cited in this chapter are just a drop in an ocean of costly, hamstringing regulations.