Unreasonable Accommodation

The case against the Americans with Disabilities Act

Brian Doherty from the August/September 1995 issue

(Page 5 of 7)

Certainly the most difficult requirements of the ADA involve the wheelchair-bound, even though they represent a minuscule portion of the "49 million disabled" figure bandied about by activists. Fewer than 2 percent of the disabled are wheelchair-bound, about 529,000 people between the ages of 15 and 64. Yet it is the requirements for the proper width of "handicapped" bathrooms (though the wheelchair-bound are the only handicapped who need them) that stymie the introduction of clean, modern public toilets in cities like New York and San Francisco. And it is these requirements that are causing one Los Angeles plumber to be denied payment for his work on a municipal convention center, because some of the toilets are an eighth of an inch too close to the wall.

As the members of Atlantis/ADAPT in Denver made clear to me, life can be painful and difficult for the wheelchair-bound when no one allows for their problems in navigating streets, public transit, or the insides of stores. That's what the ADA is all about, they say, not the petty complaints of business owners.

But the wheelchair-bound aren't the biggest users of the ADA. Of the nearly 40,000 complaints the EEOC (which handles employment complaints under the law) received by the end of 1994, only 7.3 percent had to do with people disabled in their extremities, which would cover wheelchair users, as well as people with orthopedic problems, missing digits, and the like. The blind and the deaf together accounted for only 6 percent of complaints. A plurality fell into categories for which the meaning and seriousness of the "disability" are far more nebulous--and thus ripe for more complicated legal contentiousness--such as back impairments (19.5 percent), neurological impairments (12.1 percent), and emotional/psychiatric impairments (11.4 percent).

"The ones that go to court are usually not the good cases, the ones involving obvious disabilities," says Nancy Noall, a Ohio ADA lawyer. "Legal problems start when the claimed disability is not something an employer or typical person considers a handicap....Sometimes there are just ones who are faking it. Back injuries with no medical evidence, where they won't accept any accommodation except getting a helper to do the entire job."

The heaviest burden isn't making reasonable physical accommodations, says Austin, Texas, attorney Dewey Poteet. It's handling employees with kid gloves: "Like if an employee has missed on average 100 days a year over the last three years, for nothing specific, but much of it for various doctor visits. That should be a straightforward issue--attendance--but there are medical issues involved, and therefore ADA implications."

Questions of mental illness can turn open-and-shut cases into insoluble dilemmas. Labor attorney Frank Cronin of Los Angeles tells of a secretary who couldn't remember assignments she had been given. Because of her memory problems, she was getting frustrated and in disputes with her boss, who needed a secretary who could handle a fast-paced, high-pressure office environment.

She asserted that her memory loss came from taking antidepressants. If she took too much, she suffered memory loss; too little, depression, which manifested itself in weeping and fights around the office. Her boss was ADA-savvy enough to know that depression equals disability. So rather than fire her, he took away many of her tasks but kept her at the same pay. Hiring someone else to do the jobs she used to do cost the employer $40,000.

She then claimed that this discrimination in job assignments caused her to become more depressed and to start missing too many days. She was eventually fired, and fighting off her lawyer cost another $20,000. "This is a typical pattern in psychological injury cases," says Cronin. "It's impossible to accommodate it."

Another Cronin case involves a part-time insurance clerk. Very bouncy, colorful dresser, always telling interesting stories, married 20 years, Cronin relates. Then she had recovered memory therapy that "discovered" sexual abuse from her father as a child. After this therapy, she became miserable, depressed, and cut off from her family. She became obsessed, started wearing black, and her depression led to absenteeism. After six to eight months of that, she was fired. And she sued.

"The lawsuit is still pending. Because the legal standards are so unclear, we won't know until the jury tells us, How do you reasonably accommodate someone who is so depressed they are always thinking about their problems at work? Is her depression enough to be qualified as a disability? None of these questions can be answered without very expensive legal proceedings with tons of expert witnesses," says Cronin. "I'm getting depressed just thinking about this."

Do Do-Gooder Laws Do Good?

The feel-goodism of the ADA does not come free, or even cheap. All indications are that the ADA simply cannot be obeyed in its entirety. Which means every business, every public building, every government in the country is living under the shadow of a potentially exhausting and financially devastating lawsuit.

And for what? Like research into ADA's macro costs, research into its benefits has been thin. But the data that exist are not encouraging.

The National Organization on Disabilities conducted a survey on the status of the disabled in America in 1986 and again last year. The big numbers are numbing: 49 million disabled, more than one of six people of working age (defined as between 15 and 64). Fifteen percent, this survey says, have back problems as their only disability.

The specific figures are more striking. When Congress was considering the ADA, its advocates emphasized the benefits of making the disabled taxpayers, instead of tax consumers, by giving them freer access to jobs. But the ADA has had no appreciable effect on getting the disabled into the workforce.

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