Unreasonable Accommodation

The case against the Americans with Disabilities Act

Though only fi.nt political era. A kinder, gentler Republican president was in the White House, the Democrats controlled Congress, and Sen. Edward Kennedy praised Senate Minority Leader Bob Dole for his key role in passing a new anti-discrimination law.

Any sweeping regulatory package in civil rights wrappings that wins the enthusiastic support of those two is bound to mean trouble. The law was the Americans with Disabilities Act, and it gives the feds veto rights over such issues as: whether a prospective employer can ask a would-be truck driver if he has epilepsy; how far grab bars must be from the back walls of toilet stalls; what surfaces are permitted for subway platforms; how restaurant seating must be arranged; and dozens of other aspects of running businesses and city governments. The law has created an entire industry around interpreting it and, as the old cliché goes, provided plenty of work for lawyers, if not for the handicapped.

In theory, the ADA merely banned discrimination against the disabled in employment and public accommodations, and only forced employers and storekeepers to make "reasonable accommodations" that did not constitute an "undue burden." Unlike its predecessor law, the Rehabilitation Act of 1973 (which forbade discrimination against the disabled only in federally funded programs), the ADA gave individuals the right to sue over alleged violations.

No grassroots movement campaigned for the bill, but it was phenomenally popular in Congress, spearheaded by various congressmen with disabilities themselves or disabled friends or relatives. It passed the Senate 76-8, and the House 403-20. (Not even firebrand Newt Gingrich could bring himself to vote against it, though Dick Armey did.) Despite warnings about huge costs and runaway litigiousness, President Bush loved the feel-good law, especially as he prepared for campaign '92.

"The message from the Bush administration was not a subtle one: 'We're going to support this. You can try to block it, but good luck--you're not going to,'" says business lobbyist John Tysse.

Facing such daunting odds, business groups settled for minor concessions, such as a limited right to do pre-employment physicals and the right not to hire current users of illegal drugs. But the greatest business victory in limiting the ADA was taken away in a civil rights bait-and-switch. The original ADA's remedies did not include punitive damages or jury trials, but the 1991 Civil Rights Act retroactively amended the law to include them.

Once the bill was in motion, a disabled person from every member's district was sent to lobby for the ADA. "You'd look out in the hall, and see 50 people in wheelchairs and people climbing out of wheelchairs trying to crawl up the Capitol steps, and logic and rationality go out the window," reminisces Lori Eisner, a staffer for Rep. Tom DeLay (R-Tex.), one of the few congressmen to vote against the ADA. "The ADA is filled with lack of definition, everything's open-ended, but the attitude was, this is a feel-good thing, let the courts decide."

The "feel-good thing" is now reality, and it doesn't feel nearly as good as promised. The ADA has emerged as a prime example of congressional irresponsibility. While many of its specific results surely could not have been intended, the law's vague prescriptions and wide reach guaranteed it would become, and will remain, an expensive headache to millions without necessarily improving the lives of its supposed beneficiaries.

Many presumed benefits haven't yet blossomed, but the costs are all too real. Businesses as tiny as family-owned diners and corner dry cleaners are dodging regulators, in some cases paying tens of thousands in legal costs. Cash-strapped local governments are spending billions to comply with public-accommodation requirements. And the ADA's intended beneficiaries--blind, deaf, or wheelchair-bound Americans now on public assistance--are no more likely to be in the mainstream workplace now than in 1991. Most of the law's benefits have accrued to the already-employed, and then mostly to plaintiffs with back injuries or emotional problems, not to the sympathetic lobbyists who stormed Capitol Hill.

We've all heard ADA anecdotes that strike most people (except plaintiffs' lawyers and the judges who don't throw these suits out on their face) as patently absurd: the overweight fellow who sues for bigger seats in theaters, the guy who claims he brought a gun to work because of a psychiatric difficulty, the nightclub ordered to provide space for possible wheelchair-bound strippers, the woman who claims her offensive smell is a protected disability. Such cases aren't typical, however, and in most of them the plaintiff loses.

But they do suggest the opportunism the law has spawned, the potential scope of its definition of civil rights, and the difficulty of interpreting such vague terminology as "reasonable accommodation." Five years and two important elections after the ADA passed, it is finally possible to give it the sober scrutiny it deserved before it became law.

The Costs of Doing Good

The ADA's total costs are impossible to estimate with certainty. All we can know about are individual cases, and even there most people don't want to talk. With a law that is usually triggered by activist complaints, says a restaurateur, "in a lot of cases someone is afraid that something they say is going to come back to them."

The law rewards "good faith" compliance, so it behooves any business owner or manager not to say anything publicly that might betray a lack of good faith toward the ADA or its application. Lawyers, pundits, consultants, city officials, trade group reps, even people forced to pay tens of thousands trying to obey the law, all emphasize they have no problem with the concept of the ADA, just the uncertainty and stringency of its application.

Richard Kubach Jr. is one of the very few victims of the law who are willing to talk about it. For the past 22 years, he has run Philadelphia's Melrose Diner. Opened by Kubach's father, the diner celebrated its 60th anniversary in March and attracts a clientele that ranges from bums to yuppies. It is a South Philadelphia landmark, with 100 full-time equivalent employees, doing about $5 million a year in business.

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