Still crazy.Are federal judges taming the ADA Ada, city, United States
Ada (ā`ə), city (1990 pop. 15,820), seat of Pontotoc co., S central Okla.; inc. 1904. It is a large cattle market and the center of a rich oil and ranch area. ? Don't count on it.
So now we find out: The Americans with Disabilities Act Americans with Disabilities Act, U.S. civil-rights law, enacted 1990, that forbids discrimination of various sorts against persons with physical or mental handicaps. of 1990 empowers federal judges to rewrite the rules of golf, after deciding that the right to play in the elite PGA Tour is a "public accommodation" like the chance to patronize pa·tron·ize
tr.v. pa·tron·ized, pa·tron·iz·ing, pa·tron·iz·es
1. To act as a patron to; support or sponsor.
2. To go to as a customer, especially on a regular basis.
3. a lunch counter or motel. It's hard to see a reason in principle why enfeebled en·fee·ble
tr.v. en·fee·bled, en·fee·bling, en·fee·bles
To deprive of strength; make feeble.
en·feeble·ment n. base runners now shouldn't ask for motorized mo·tor·ize
tr.v. mo·tor·ized, mo·tor·iz·ing, mo·tor·iz·es
1. To equip with a motor.
2. To supply with motor-driven vehicles.
3. To provide with automobiles. buggies to help in their attempts to steal third, or why slow pawn pushers shouldn't get double time on the tournament chess clock if they bring in a note saying they're learning disabled. College applicants already get double time on the SATs that way, after all. Every Olympics a Special Olympics!
A parade of revered pros from Jack Nicklaus and Arnold Palmer on down had testified that walking and its associated fatigue, sometimes across steep terrain under a broiling broiling: see cooking. sun, is intrinsic to the game of golf, and that in any case the sport deserved the right to set its own rules. No matter: To Oregon federal magistrate Thomas Coffin, the more relevant factor was that local hopeful Casey Martin, even with a cart to accommodate his leg disability, will still be expending more energy and getting more winded than his able-bodied competitors. With the point of pro sports now redefined as credit for effort rather than actual performance, the track and field people might just as well give up and proceed directly to installing the high-jump ramps.
Last year, ADA backers had been put on the defensive by the public's incredulous reaction to the new Equal Employment Opportunity Commission guidelines on mental illness in the workplace. The plucky pluck·y
adj. pluck·i·er, pluck·i·est
Having or showing courage and spirit in trying circumstances. See Synonyms at brave.
pluck Martin was a more sympathetic figure, personally liked even by many fans who thought his legal campaign was a disaster. And yet the victory against the PGA (1) (Professional Graphics Adapter) An early IBM PC display standard for 3D processing with 640x480x256 resolution. It was not widely used.
(2) (Programmable Gate Array) See gate array and FPGA. also undercut a theme that the disabled-rights forces had been assiduously as·sid·u·ous
1. Constant in application or attention; diligent: an assiduous worker who strove for perfection. See Synonyms at busy.
2. cultivating over the past year. No matter how extreme the ADA might sound as a venture into social engineering, they insisted that in practice the federal judiciary was interpreting it so cautiously and narrowly that no one should take alarm. Thus the Los Angeles Times Los Angeles Times
Morning daily newspaper. Established in 1881, it was purchased and incorporated in 1884 by Harrison Gray Otis (1837–1917) under The Times-Mirror Co. (the hyphen was later dropped from the name). suggested that "the broad protection promised by the ADA has been unfulfilled because of the narrow way that judges and employers have interpreted the law." "Judges are holding plaintiffs up front to a very high standard," nods David Fram of the National Employment Law Institute.
Sorry, but no dice. Sure, case reports include plenty of ADA claims that lose, and many courts have indeed applied relatively narrow interpretations. But the backers of super-expansive ADA interpretation - which include the EEOC EEOC
Equal Employment Opportunity Commission
EEOC n abbr (US) (= Equal Employment Opportunities Commission) → comisión que investiga discriminación racial o sexual en el empleo and Justice Department, most academic commentators, and the usual array of activist litigators - have also been winning cases of their own. Moreover, there's no symmetry between noteworthy defendant wins - which are often hard to marshal as precedent that provides any real safe harbor Safe Harbor
1. A legal provision to reduce or eliminate liability as long as good faith is demonstrated.
2. A form of shark repellent implemented by a target company acquiring a business that is so poorly regulated that the target itself is less attractive. for future practice - and noteworthy plaintiff wins, which, as in the PGA Tour case, can open up huge virgin fields for future litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called litigation. . Given that the U.S. Supreme Court has declined to address the tangle of inconsistent lower-court rulings, no well-advised employer or business should behave as if its exposure under this law is anything other than open-ended, unpredictable, and highly dangerous.
Last September U.S. News & World Report U.S. News & World Report
Weekly newsmagazine published in Washington, D.C. U.S. News was founded in 1933 by David Lawrence (1888–1973) to cover important domestic events; he founded World Report in 1945 to treat world news. The two magazines were merged in 1948. published in its "News You Can Use" department a remarkable little piece asserting that, widespread opinion notwithstanding, "managers have little reason to fear being sued" under employment law. To back up this contrarian (at the least) view, it cited ADA case law: "Recent court rulings have actually made it tougher for employees to claim discrimination by narrowing the definition of who is protected.... Courts have found, for example, that if an employee's mental illness is controlled through medication or his or her hearing is improved by a hearing aid, then the person is not disabled under the law."
How accurate is that statement? Yes, some courts have ruled correctable disabilities aren't covered by the law. But other courts, of equal authority, have ruled the opposite. Thus in June of last year, a federal judge in Washington declared an IRS An abbreviation for the Internal Revenue Service, a federal agency charged with the responsibility of administering and enforcing internal revenue laws. agent with vision problems to be legally disabled and thus covered by the act even though corrective lenses gave her 20/20 vision. On September 2, not long before the U.S. News article went to press, the 6th Circuit ruled that Kevin Gilday of Mecosta County, Michigan Mecosta County is a county in the U.S. state of Michigan. As of the 2000 census, the population was 40,553. The county seat is Big Rapids6. Geography
According to the U.S. Census Bureau, the county has a total area of 1,479 km² (571 mi²). , who suffered from treatable but in fact untreated diabetes, was covered by the ADA. Gilday had been fired from his paramedic par·a·med·ic
A person who is trained to give emergency medical treatment or assist medical professionals.
paramedic job for rudeness toward patients and colleagues that he claimed stemmed from mood swings caused by his diabetes.
Or consider the issue of whether workers can be held to a consistent standard on the issue of whether they're too disabled to work. In the 1996 case McNemar v. Disney Store, the 3rd Circuit ruled that a claimant who'd applied for and obtained Social Security benefits based on a certification of being completely disabled and wholly unable to work could not then turn around and sue a private employer which had agreed with the Social Security people that he wasn't up to a job. Disabled advocates greeted the McNemar decision with peals of outrage - those dreadful conservative courts were at it again. If any employers were so rash as to rely on McNemar as precedent, they were soon given pause. Last summer, in a pair of cases written by Judge David Tatel, the D.C. Circuit came out the other way, seeing no problem in simultaneously accepting benefits based on 100 percent disability and claiming fitness for work as grounds to sue someone who refused you a job.
Or consider lawsuits demanding extra time on tests and other perks for the learning disabled. Some early cases suggested judicial skepticism, but by last summer the ADA triumphalists saw the tide beginning to turn: A New York New York, state, United States
New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of woman who had flunked the bar exam five times won a federal court order that she be given double time and other accommodations, while in another case learning-disabled students gained a partial court success against resistant officials at Boston University, enough to let their lawyers claim victory.
Not as far along toward judicial acceptance - yet - are complaints that employers have failed to accommodate diagnoses of multiple chemical sensitivity multiple chemical sensitivity (MCS), adverse physical reaction to certain chemicals in susceptible persons. When exposed to the chemicals, people with MCS react with symptoms such as nausea, headache, dizziness, fatigue, impaired memory, rash, and respiratory by protecting workers from the smells of new carpets, co-workers' perfumes and shampoos, copier toner, cleaning fluids, and so forth. (See "Sick of it All," June 1996.) Yet, as The New York Times reported in February, MCS patients are increasingly meeting with success in pursuing workers' compensation workers' compensation, payment by employers for some part of the cost of injuries, or in some cases of occupational diseases, received by employees in the course of their work. claims over their condition. Only a brave employer will dismiss the prospect that some employee down the road will parlay such a determination into an official finding of ADA coverage. The lesson, again: When in doubt accommodate, even if the demands tie the office in knots.
Other ADA shocks seem to come every few weeks. One came recently when a federal court ruled that infertility would henceforth count as a disability, magically establishing a new requirement that employer health plans cover in vitro fertilization in vitro fertilization (vē`trō, vĭ`trō), technique for conception of a human embryo outside the mother's body. Several ova, or eggs, are removed from the mother's body and placed in special laboratory culture dishes (Petri dishes); and other expensive treatments - and retroactively, too, since it may now be possible to demand that employers foot the bill for expenses paid privately years ago for therapies that can cost tens of thousands of dollars per couple.
Indeed, the EEOC has tended to take a harsh line toward employers who rely in good faith on court decisions that are later overturned or modified. In a 1988 Chicago case, a lower court ruling had seemed to establish that it did not violate federal discrimination law for an employer to grant certain maternity benefits to its female workers but not to male workers whose wives gave birth. The owners of one small business, acting in part on the basis of that ruling, paid the benefits only to the women on its staff. When the court decision was later overturned, the EEOC demanded retroactive payments for the male employees, and backed up its view by going after the owners for damages personally (they had gotten out of the business in the meantime Adv. 1. in the meantime - during the intervening time; "meanwhile I will not think about the problem"; "meantime he was attentive to his other interests"; "in the meantime the police were notified"
meantime, meanwhile ). The oppressive outcome, upheld by the 7th Circuit, was to haul the owners out of retirement to face a bill for back fines and damages.
Like pounding waves that gradually erode a shoreline, the EEOC's own staff, activist litigators, and liberal law professors keep advancing the aggressive readings and extreme interpretations of the ADA that many of today's courts may not be ready to adopt. Thus the EEOC is currently suing United Parcel Service United Parcel Service, Inc. (NYSE: UPS), commonly referred to as UPS, is the world's largest package delivery company, delivering more than 15 million packages a day to 6.1 million customers in over 200 countries and territories around the world. over its policy of refusing to hire truck drivers who have vision in only one eye. No one really knows whether they'll win or lose. And yet it's rather paradoxical for these same enforcers and activists to cite the courts' hesitance about accepting such claims (yet) as if it were some saving feature of the system, an infusion of much-needed common sense. It's as if they're saying: "Oh, pipe down, we'll probably lose."
In February former Rep. Tony Coelho, a prominent ADA sponsor who now heads the President's Commission on Employment of People with Disabilities, appeared on Crossfire to cheer the Martin decision and the ADA in general. (I was tapped to take the opposite side.) "It was deliberately written vaguely," he announced of the law, openly contradicting such other defenders as Janet Reno, former Attorney General Dick Thornburgh, and law professor Walter J. Kendall III, all of whom have claimed in print that the ADA is "clear." Perhaps Coelho's most curious argumentative gambit was to suggest that if employers are spending fortunes on ADA compliance it's their own fault: They've been snookered, he says, by "Rolls-Royce" consultants who push expensive compliance methods when inexpensive ones are available.
And yet it wasn't some consultant who proclaimed that disabled workers may have a right to personal assistants and one-on-one "job coaches"; it was the EEOC itself. It wasn't a consultant who ordered medical boards (and by extension hospitals) to stop inquiring into doctors' histories of mental illness, alcoholism, or addiction to drugs found in hospital dispensaries; it was a federal judge in New Jersey. It wasn't a consultant, of the Rolls-Royce or even the Hyundai variety, who announced that a small company might be legally obliged to foot the bill for the supervisor of a deaf job applicant to go off and take courses in sign language so the two could communicate; it was The New York Times, in a front-page article in July 1992. And it wasn't a consultant who ruled that violence, belligerence bel·lig·er·ence
A hostile or warlike attitude, nature, or inclination; belligerency.
the act or quality of being belligerent or warlike
belligerence , and theft on the job could signal protected disability; it was federal courts in Florida, Maine, and other states.
It's not a Rolls-Royce of a law, or a hole-in-one either. It's a train wreck train wreck Medtalk A popular term for a multiproblem Pt in critical condition and a sand trap.
Contributing Editor Walter Olson (firstname.lastname@example.org) is senior fellow at the Manhattan Institute and author of The Excuse Factory (The Free Press).