Invitation to Sue

In Connecticut, three mothers of asthmatic children are suing McDonald's, Burger King, and Wendy's for providing designated smoking areas. Their attorney, Robert Farr, told The New York Times that asthma is a disability and, because of the Americans with Disabilities Act, the restaurants must accommodate these kids by kicking out smokers.

When Congress approved the ADA in 1990, it was sold as a well-intentioned effort to provide "reasonable accommodation" for disabled people. Instead, the bill has become a bonanza for litigators and a menace to employers.

Since the ADA's first employment provisions took effect on July 26, 1992, the Equal Employment Opportunity Commission has received more than 7,000 complaints against businesses and government agencies—1,600 of them in March 1993 alone.

While the EEOC does not have the power to enforce the employment provisions of the ADA, the agency can recommend a settlement or even sue a company. Consider the first ADA suit, filed in Chicago last November. In 1987, Charles Wessel, the executive director of AIC Security Investigations Ltd., was diagnosed with lung cancer. By 1992, the cancer had spread to his brain. His doctors said he had six months to live.

The company claimed Wessel could no longer perform his job because of his illness and the side effects of his medication. When Wessel refused the company's offer to retire, he was fired. The EEOC sued on Wessel's behalf, and a federal court ruled that the layoff violated the ADA. He received $572,000 in back pay and damages. (Interestingly, EEOC statistics show that 48 percent of its complaints are for employees who were fired; only 21 percent are against firms that allegedly fail "to provide reasonable accommodation.")

Taxpayers are also directly at risk. In February, a federal district judge ruled that, whenever Philadelphia repaves a city street, the curbs must have wheelchair ramps. Judge Harvey Bartle ruled that the language in the public services section of the ADA equates repaving streets with "new construction and alteration." The additional cost to Philadelphia taxpayers: $8.5 million in fiscal year 1994.