Unreasonable Accommodation
The case against the Americans with Disabilities Act
Though only five years ago, 1990 was a different 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.
Kubach shows hints of Stockholm Syndrome when he talks about how helpful the local disabled activist group who challenged his diner's four front steps were in explaining to him what he would have to do to satisfy them. "Outside of the fact that it was through litigation, they've behaved in a favorable way," he says, sounding weary and beaten.
"It was difficult to get a real handle on what was required. I attended conferences in D.C. with top officials of Justice and different departments responsible for overseeing the ADA, and in front of several hundred people they admitted they were unclear about the direction things would go," he says. The specific meaning of many ambiguous phrases in the law, such as "undue burden" and "reasonable accommodation," will have to be revealed through case law. But we don't have a lot of that yet—and it takes cases like Kubach's to establish it.
Compliance cost Kubach nearly a year and about $65,000. He was delayed by the harsh winter of 1993-94, which made the activists think Kubach was intentionally dragging his feet. But it was hard to build a ramp when the area in question is buried in ice, snow, and sleet.
The ultimate ADA goal of complete, unhindered access with no need for any assistance still isn't met at the Melrose Diner. Given the building's stainless steel exterior and 60-year-old structure, a complete retrofit was impossible. There are still, for example, no barrier-free paths to the bathrooms inside.
And for all Kubach's expense and trouble, no hugely pressing social problem has been solved. Previously, says Kubach, "the problem of the disabled came up infrequently, but they were usually coming with people who could bring the wheelchair up the stairs, or we could send busboys out to get them who could lift them up. But it wasn't considered satisfactory to send people out to lift them, or bring them through the kitchen." Hence the lawsuit.
Restaurateur Blair Taylor isn't as sanguine about his experience with the ADA. He owns the Barolo Grill in Denver—"a very high profile, upscale, Jags-and-Rolls-Royces type of Italian restaurant in an expensive shopping district called Cherry Creek." As we talk the week before Valentine's Day, he is interrupted by nearly a dozen phone calls within an hour, seeking reservations for Valentine's Day. The Valentine's Day reservation book has been packed for a couple of weeks already.
Taylor is "a 40-year-old yuppieish kind of white guy. I'm a safe, wonderful target for these things." "These things" for Taylor mean nearly two years of legal conflicts with both the Justice Department and the city of Denver that ended up costing around $100,000 in construction and legal fees.
Taylor's troubles started in December 1992, just after opening the Grill, with a phone call from the DOJ. "Apparently they had been peering in during construction, and noticed we hadn't done some work we should have done. They told me they were investigating complaints for noncompliance," he says. He wasn't immediately responsive: "The first week of running a new restaurant isn't when you have a lot of free time." Taylor insists that he could take a walk from his restaurant and find 40 businesses in worse ADA shape than his was. He thinks he may have been under surveillance because of complaints against the former owner of a restaurant in the location, but "never can I get a specific answer from DOJ. They'll just say, 'No, Mr. Taylor was a horrible person.'"
Not exactly a horrible person, but DOJ civil rights lawyer Kate Nicholson, who worked on the Barolo case, does call Taylor "very difficult." She denies any malice or example-making, stressing that Taylor made continual promises to make changes by given dates and missed them all. DOJ isn't generally quick to sue, she says.
DOJ was unhappy with the four-inch step up to the door of the Barolo Grill, even though parking valets would always be available to help wheelchair users over the hump. Justice Department enforcers also didn't like the 11-inch raised platform in the back of the Barolo, with nine tables in addition to the 17 on the main floor.
A ramp to the platform was built, destroyed, and then rebuilt in response to Justice's complaints. The first time the ramp wasn't long enough for DOJ's very detailed building standards. The ramp is now the requisite 11 feet long and 41 inches wide to navigate a 11-inch rise, costing Taylor three tables worth of space in his usually sold-out restaurant.
The front ramp created a whole new set of problems, since it violated Denver city ordinances and required variances. "I said, 'I promised the federal government I'd do this ASAP, and city law won't let me do it?'" says Taylor. "It was an eight-and-a-half month process through various city boards.
"The federal government at the same time are saying, 'Faster, faster.' They'll say Mr. Taylor went back on his word several times, but the city wouldn't let me keep my word." DOJ's Nicholson was uncertain of the details of Taylor's problems with the city. All she knew was, he was violating the law and wasn't quick enough to remedy things.
By February 1994 Taylor had city permits for his ramps, bathrooms, fire alarm, roof drainage, sanitary water waste management tests, new air systems, and strobe lighting—"a tremendous number of irrelevant things that were at bottom about putting in two ramps." The DOJ went ahead and sued anyway in April, since they still had some complaints.
"They're demanding a $50,000 fine, the maximum for a first-time offender. And the price tag to go into federal court is very expensive anyway. We're forced to go to a settlement conference. I say that I'm in complete compliance, and if I can just pay a fine I'd like to go home."
DOJ didn't agree. Its complaints included: The handrails on the entrance ramp had two more inches between them and the restaurant's window than the law allows; the restroom grab bar was mounted two-and-a-half inches too far from the back wall; carpeting ended two inches before the patio door; and the wine storage room didn't have a ramp to its door (which was also not wide enough).
DOJ's biggest complaint was the back alley exit ramp, insisted on by Denver as a fire-safety precaution. Because delivery trucks use the alley, the handrails did not extend all the way to the bottom of the ramp, as the ADA demands; if they did, trucks would knock them down forthwith. The ramp was also steeper than the ADA allows. Since federal ADA regulations don't require this exit ramp, the feds decided Taylor should remove it. Disgusted, Taylor says, "You can't use common sense—would you rather use a ramp slightly too steep without handrails all the way to the end, or would you rather die in a fire?" The ramp is now gone.
The suit was settled with a $16,000 fine. Six thousand dollars of it went to protesters from Atlantis/ADAPT, a local handicapped-activist group that picketed the Barolo Grill.
"The federal government flew two attorneys for every meeting, gave them hotels, rental cars, meals. They came in from D.C. seven times," says Taylor. "We figure at least $250,000 was spent to force a restaurant in Denver to comply." He says the restaurant continues to average about one wheelchair-using patron a month—the same as before the case: "Nor have we ever once had a customer's wheels touch the ramp to the upper platform."
Mike Auberger thinks Taylor has an attitude problem. Auberger is a member of Atlantis/ADAPT, the local activist group who set up tables on the sidewalk in front of the Barolo, eating cans of Chef-Boy-R-Dee and drinking cheap wine with a sign displayed: "Accessible Seating."
"Taylor created his own problems," Auberger says. "It's real clear the contractor and owner violated city construction laws. You should expect them to come down hard. They could have made him take everything out.
"We don't appear to public opinion to be reasonable, but we are," Auberger says. He and Robin Stephens, and four of their ADAPT colleagues, met me in March in their offices. Despite the phony egalitarianism implicit in their wanting all to meet me together, Auberger, the only one with a conventionally clear voice, did most of the speaking. Stephens, whom Auberger credits as the main organizer of their 23 ADA lawsuits (so far) against Denver businesses, talked a little.
They aimed their first wave of suits at the Cherry Creek district where Barolo is located, "a real chi-chi area where all the watches cost $5,000," Auberger says. Their campaigns usually start by writing letters, followed by demonstrations. Only then do they resort to lawsuits.
"It's a hell of a lot easier to do it in a meeting. It takes a hell of a lot of energy to do the demonstrations, to do the lawsuits. We'll do that if that's what it takes. But my preference is, let's do it nice and resolve it as amicably as possible."
After Cherry Creek—where only the Barolo case garnered DOJ involvement—Atlantis/ADAPT has its eyes on lower downtown Denver, an area with mostly older buildings. Another wave of demonstrations and possible lawsuits is building up to hit Denver, and ADAPT has affiliate organizations in 33 other cities. With the ADA's provisions for private-party suits, these groups have a direct financial incentive—as well as ideological motivations—to launch such campaigns.
Private citizens aren't the only ones bedeviled by strict application of the ADA. The Washington (D.C.) Metropolitan Area Transit Authority has already spent almost $40 million on ADA reform, says spokeswoman Patricia Lambe. So it's not just a matter of money that made them rebel against a particular ADA requirement that they found irrelevant and completely unnecessary. "It's principle and science," Lambe insists, explaining D.C. Metro's refusal to change the platform edging in all their train stations to a raised surface of rubber bumps—allegedly to prevent blind riders from falling in front of trains.
The D.C. Metro system commissioned a study that found the current platform edging perfectly suitable to prevent that tragedy—which occurs far less frequently than sighted people falling. The rare falls by the blind that have occurred were caused by things other than the difference in surfacing between the edge and the main platform anyway, Lambe insists. "Where is the data saying this was ever a problem?"
Besides, she says, the ADA was meant to be a civil rights law, not a safety regulation. The D.C. Metro system told the Federal Transit Administration it intends to keep its current platform edging. Instead, under an agreement with the FTA, the Metro will intensify the flashing lights at the platform edge.
For many individuals and municipal authorities, though, cost is the issue. The National Association of Counties estimates the ADA will cost counties $2.8 billion to comply from 1994-98. The U.S. Conference of Mayors sees cities spending $2.2 billion over the same period.
Consider sidewalk curb cuts, which provide mini-ramps for wheelchair users on city sidewalks. Various municipalities estimate the cost of installing the cuts at $500 to $4,000 each—and most cities have a lot of curbs. The ADA's curb-cut requirement kicks in any time work is done on roads or sidewalks. Philadelphia recently lost a suit in which it argued that merely resurfacing the street in front of the sidewalk shouldn't mean having to replace the curbs. Now just filling potholes can trigger ADA-related sidewalk overhauls.
Many cities, like many businesses, are simply flouting the law. The official deadline for ADA compliance for local governments was January 26, and no one is pretending this means anyone is actually in compliance. Every town and county in the nation is a lawsuit away from serious trouble.
Still, ADA experts at municipal government associations emphasize that good-faith efforts with the disabled community can insulate cities from suits. Governments can avoid expensive structural retrofitting by emphasizing "program compliance" instead of "structural compliance": holding meetings downstairs instead of upstairs, for instance.
John Storm and Roman Yasiejko of the Duchess County (New York) Department of Health are the Stuart Smalleys of governmental ADA compliance—they've done well, they feel well, and by gosh, ADA compliance is a snap if you approach it with the right attitude. They insist that municipalities can comply. They did, not by hiring expensive outside consultants to examine their 800,000 square feet of office space but by putting together a complicated structure of city-employee teams. In the end, Storm and Yasiejko calculate that the actual cost of bringing the county into almost 99 percent ADA compliance was only $330,000, substantially less than their first estimate of $800,000, which included money for outside consultants.
But they get this figure by assuming the labor of all the employees was absolutely costless. Yes, the project required them to form multi-level teams to examine every square inch of their office property and come up with ways to bring it up to the standards of a complex law that none of them had any previous experience with. But, says Yasiejko sincerely, those employees weren't officially relieved of any of their other duties, so the project cost nothing extra.
Duchess County also found savings by foisting compliance expenses onto the private landlords from whom they lease space. Under the law, says Yasiejko, "the private sector has less flexibility with compliance than the public. So will the county pay, or the landlord? There's a very competitive market for buyers of leased spaces, so in most cases the landlords bore the cost."
This misplaced sense of costlessness—ignoring expenses sloughed off on others, assuming no opportunity cost to lost time (or space)—often contaminates estimates of the low cost of ADA compliance. For example, a handicapped space in a small strip-mall parking lot could be considered as cheap as spray-painting the silhouette of someone in a wheelchair—or as expensive as lost business when people leave because they can't find a parking space.
And sure, some modifications, like putting desks up on cinderblocks to make room for wheelchairs—an example beloved by ADA devotees—are cheap and easy. But at least in that case, the modification is in response to an actual existing problem—a real employee in a wheelchair.
Consider a more-typical "public accommodation" modification triggered by construction work in the offices of the Reason Foundation, the nonprofit think tank that publishes REASON. Although the modern office building in which the foundation is located complies with most ADA requirements—from wide doors to Braille elevator buttons—most suites have conventional noisy fire alarms. So when the foundation spent $1,100 to install a couple of half-walls dividing offices, it was required to fork over another $5,000 (to a different contractor) for strobe-light fire alarms for the deaf. The foundation has no deaf employees, and the chance that a deaf visitor would be around during a fire and not have any hearing person warn them is infinitesimal. But the law is the law. And $5,000 is a lot of money.
The estimates of the ADA's costs are almost certainly skewed downward, perhaps unintentionally, by advocates. The Job Accommodation Network, a government-funded disability consulting service at West Virginia University, is often cited for its figures emphasizing the very low costs of accommodating the disabled in the workplace. Their data, based on surveys (with a 45 percent response rate) of people who call them seeking advice, indicate that 68 percent of ADA accommodations cost less than $500, and that only 22 percent cost more than $1,000. The median cost, calculates the network, is $200 per accommodation; the average, $992.
Some lawyers guess that those figures are in the ballpark. But Wendy Lechner of the National Federation of Independent Businesses calls them "complete hooey." She says, "There is no meaningful average. We know that small business owners are not being surveyed to find out their costs. It's all anecdotal evidence from a small amount of respondents."
One reason the ADA might not be showing its eventual full costs is simple, yet not one a business owner would generally admit out loud. The ADA costs nothing if you do nothing about it, merely crossing your fingers and hoping not to get sued.
Hamilton Brown, an ADA consultant for the National Association of Towns and Townships, estimates that only about half of his clients have done anything at all about the ADA. And even though his clients include only small, mostly rural governments, they still probably have more money to play with than the Texas small businessmen with whom David Pinkus of Texas Small Business United works.
"The typical small businessman won't read any of these hundreds of pages of federal regulations," Pinkus says. "They just want a small checklist that everyone can agree on: If you do this, we won't sue you. But the government doesn't want to give anyone the impression they won't ever be sued. So businessmen think, I might as well wait to get sued and then do what they ask me to do."
Who Are the Disabled?
Richard Kubach's, Blair Taylor's, the D.C. Metro's, and the Reason Foundation's cases are unusual in a counterintuitive way: They involve the wheelchair-bound, the blind, and the deaf. Some might expect—and the debates over the law implied—that such disabled people would be among the ADA's main beneficiaries.
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.
In fact, the percentage of working-age disabled actually working went down from the 1986 survey—31 percent were working in 1994, compared with 33 percent in 1986. A similar study done by Vocational Econometrics Inc. found that the percentage of disabled males working or actively looking for work dropped to 30 percent in 1993 from 33 percent in 1992.
Nor has the ADA shown any signs of stanching the flow of federal disability relief money. Total benefit payments from the Social Security's disability insurance trust fund were $40.4 billion for fiscal 1995, up substantially from the $30.4 billion in 1992, when the ADA went into effect.
The data don't prove the ADA has not had benefits in bringing the disabled into the workplace—perhaps without the ADA their employment rate would have been even lower. But there is certainly no evidence, despite all the costs, that the ADA has helped.
George Kroloff, a spokesman for the National Organization on Disabilities, still thinks the ADA has done some—unquantifiable—good: "We're seeing the disabled presented more positively in movies, advertising, TV shows….The tenor of the nation, in some not-measurable way, is more caring than it has been in the past."
The Politics of Reform
If that's true, then perhaps draconian legal solutions to the problem of handicapped access aren't necessary, especially since there's no indication that the ADA approach has worked except to satisfy the activist groups that have claimed the scalps of the likes of Blair Taylor and Richard Kubach.
Injured war veteran Bob Dole was a key supporter of the ADA. Phil Gramm also voted for it. Both are now angling to be elected president in 1996, as leaders of a party ostensibly dedicated to easing unfunded federal mandates, chopping through the regulatory thicket, and creating an America of, in Gramm's favorite phrase, more freedom and less government. The ADA threatens all three goals.
Still, Dole staffers say that they see no reason to rethink the ADA now, and they doubt that any of his '96 opponents will attempt to outflank him on the issue. Indeed, no one from either Gramm's campaign or his Senate office would comment. As one Senate staffer put it, even his great-aunt who ran a local chapter of the John Birch Society doesn't have much of a problem with the idea of handicapped access.
The principled argument against the ADA is that it violates free association. And unlike more-traditional civil rights law, it sometimes forces people to bear huge costs while doing so.
The point of race- and sex-based civil rights law was to treat everybody the same; the ADA demands treating everybody differently. The disabled are not, in civil rights terms, analogous to blacks or women. It's one thing to say you must let into your restaurant, or hire, someone who in all practical aspects is just like any other customer or employee. It's another matter entirely to force you to build a ramp (instead of just giving someone a physical boost) at great expense to allow them easy access. And it is even more extreme to require that businesses allow employees to keep working if their emotional disturbances make them an unproductive nuisance.
It's a bit much to expect Republican politicians to recognize such principles—or even to consider them. But it would not be too much to recognize that the vagueness and reach of the ADA make it a law that has lost its bearings.
The standards for making new buildings handicapped accessible are reasonably clear (if overly detailed and sometimes silly), but there is essentially no way for someone operating a business in an old building to know if he is obeying the law. And while the employment part of the ADA applies only to businesses with 15 or more employees, the access sections cover every public accommodation—and the meaning of public accommodation has been stretched to include non-physical "accommodations" such as health care plans.
Clear and precise definitions of "reasonable accommodation" and "undue burden"—such as dollar caps—are a necessary first step in ADA reform. The law ought to recognize that sometimes it makes more sense to help a person in a wheelchair up a step or two than to spend thousands of dollars on ramps. It ought to realize that if someone in a wheelchair can sit and eat in a restaurant it's not necessary to force the owner to go to heroic measures to make sure that person can sit everywhere in the restaurant. Congress is now considering cost-benefit analyses for future regulations; it needs to look at some in the past too.
ADA reform any time soon is a slim possibility. Lori Eisner of Rep. DeLay's staff says, "If one freshman got fired up they could very well get enough support to make something move." But even post-Contract, no such firebrand has arisen.
Now that Congress itself is officially bound to abide by the ADA, legislative change could be an ill-considered lawsuit away. But it's doubtful that disabled activists would be foolhardy enough to risk showing Congress directly how unreasonable and expensive full compliance can be.
The courts may, however, provide some redress. Currently, as New Haven ADA lawyer Patrick Shea puts it, "The regulations don't say anything about cost-benefit analyses. You might have to spend $100,000 to accommodate someone on a job that is only worth $25,000 to you. Tough. You've been conscripted to provide opportunities."
A decision by Seventh Circuit Appeals Judge Richard Posner, in Lori L. Vande Zande v. State of Wisconsin Department of Administration, may be the key to ending that conscription. Posner concluded that "even if an employer is so large or wealthy…that it would not be able to plead 'undue hardship,' it would not be required to expend enormous sums in order to bring about a trivial improvement….If the nation's employers have potentially unlimited financial obligations to [all] disabled persons, the ADA will have imposed an indirect tax potentially greater than the national debt."
Instead of requiring an open-ended obligation, wrote Posner, "The employee must show that the accommodation is reasonable in the sense both of efficacious and of proportional to costs. Even if the prima facie showing is made, the employer has an opportunity to prove that…the costs are excessive in relation either to the benefits of the accommodation or to the employer's financial survival or health."
That precedent could go a long way toward clearing up the issues in Frank Cronin's cases of depressed secretaries, and providing a clearer understanding of what the employment aspect of the law requires. (It could be applied to access issues as well.) It is a good first step, and it has the ADA activist community worried.
Sitting in the handicapped-accessible restaurant that cost him more months and more thousands of dollars and more grief than he could have imagined, Blair Taylor says, "I want to be helpful because I'm a nice person. I don't want to be forced to do something to help you to the detriment of my own well-being."
