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Still crazy.

Are federal judges taming the ADA? Don't count on it.

So now we find out: The Americans with Disabilities Act 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 a lunch counter or motel. It's hard to see a reason in principle why enfeebled base runners now shouldn't ask for motorized 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 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 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 also undercut a theme that the disabled-rights forces had been assiduously 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 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 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 for future practice - and noteworthy plaintiff wins, which, as in the PGA Tour case, can open up huge virgin fields for future 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 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 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, who suffered from treatable but in fact untreated diabetes, was covered by the ADA. Gilday had been fired from his 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 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 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 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 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). 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 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, 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 and a sand trap.

Contributing Editor Walter Olson (hambo@eci.com) is senior fellow at the Manhattan Institute and author of The Excuse Factory (The Free Press).
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Title Annotation:court cases related to the Americans with Disabilities Act of 1990
Author:Olson, Walter
Publication:Reason
Date:May 1, 1998
Words:1828
Previous Article:Medical convictions.
Next Article:The fire last time.
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