Wheelchairs at third base.

Should blindness disqualify you from being a fireman? Ask George Bush or Tom Harkin.

The Americans with Disabilities Act has as its stated purpose to prevent "discrimination" that prevents people with disabilities from living fully normal lives. It should come as no surprise that a bill with such sweeping ambitions-essentially, forcing society to pretend that mental and physical differences do not exist-has become a regulatory menace of historic proportions.

The law took effect in January 1992, and as of March 1993 more than 9,000 legal complaints had been filed under it, an unprecedented number in the history of civil-rights legislation. And every company that is aware of the Act is shaking in its boots.

The first lawsuit filed has just been decided. Charles Wessel, executive director of AIC Security Investigations, was diagnosed in 1987 as having lung cancer. By 1992, it had spread to his brain; because of the disease, or perhaps the medication, he was no longer "functioning," the company believed, and it asked him to retire.

Discrimination! Wessel's lawyer called the Equal Employment Opportunity Commission, where staffers happily help file suits.

Quickly - by legal standards, anyway - a federal jury declared that AIC Security had indeed violated the ADA, and awarded Wessel $22,000 in back pay, $200,000 in compensatory damages from the company, and another $250,000 from the owner, Ruth Vrdolyak - for a total of $572,000.

Never mind that Wessel had been kept on board for five years as a cancer patient. Never mind, either, that he did not have a "disability," as this term is usually understood. He was not a paraplegic, or missing a hand, he had brain cancer. Thanks to the ADA, a tragedy for him and his family was transformed into a looting spree against his employer.

By Definition

There are literally thousands of definitions of "disability" used by federal, state, and local governments. Needless to say, the authors of this Act adopted the most expansive, since it serves the widest variety of special interests: "a physical or mental impairment which substantially limits one or more of the major life activities" or "being regarded as having such an impairment." The National Council on Disability - the federal agency charged with overseeing the Act's implementation - shortens this to the absurd: "any known physical or mental limitation."

The Act covers two areas: employment, and access to public accommodations. The provisions covering public accommodations have already resulted in some extremely costly renovations. To avoid judgments, for example, the America West Arena of Phoenix, Arizona, installed 14 wheelchair sections "in all price ranges and viewing angles," built a "dog park" for seeing-eye dogs, installed hearing devices, and made concession counters three feet high for people in wheelchairs and those "of short stature." (If you aren't of short stature and get a backache from stooping over for your hotdog, that doesn't count.)

A man in a wheelchair has sued the Little League for telling him he had to coach from a distance, and not right at third base. The Little League thought - obviously without regard to essential human rights - that a large metal device at third base posed a risk to the boys (and girls - the Little League is not wholly philistine).

An art institute had to hire a person to do sign language for a single student. A small television station had to provide sign-language interpretations of all 1992 election programming. (Apparently a mere thumbs-down didn't suffice.) A private school had to install ramps and new restrooms to make it easier for one wheelchaired relative of one student to attend one ceremony.

These cases are cited by the National Council on Disability as heroic examples of the ADA in action. They prove, says the Council, that the "ADA continues to be a major success of American public policy."

The law claims that business need not take on "undue" burdens, yet the courts have not yet declared any burden undue. The Council gives only one example. Restaurants do not need to have Braille menus, for the waiter need only read the menu to the visually impaired. But what if a blind person is deaf as well? Someone will surely sue and find out. And isn't having a menu read aloud an open display of unequal treatment? The most chilling example of Braille I have seen: it now festoons the drive-in ATM at my local bank.

The Tokyo Connection

By far the most dangerous aspect the ADA, however, is its employment provisions, which went into effect last year for businesses with 25 or more employees, and will be extended next year to firms with 15 or more employees. If a manager can no longer discriminate on grounds of "physical or mental" capacities, how can he hire, fire, and promote in any rational fashion? Hey, did Japanese lobbyists promote this bill?

Indeed, it is hard to imagine what kind of reasonable employment practice would not be considered a violation of the ADA. For example, a blind fireman was dismissed and then, after a lawsuit, rehired with back pay and damages.

The very notion of job qualifications is now suspect. When a man failed the test of the electrician certification board in Wisconsin, he sued the state through the ADA. His disability? He was no good at "taking tests." Just before the case went to trial, Wisconsin gave in and allowed the man to have ten hours over two days to take the test rather than four hours on one day, and to have a tutor and a copy of the state electrical code with him. ("Okay to turn on the power now, Ma'am. Oops, sorry!")

Not all is bleak, however. In Oregon, a woman claimed to have lost her job with two airlines because she had Gronblad-Strandberg syndrome, a disease of the connective tissues. But the airlines were able to convince the court that the actual reason she was fired was persistent absenteeism - a total of one year and three months during eight years with one airline, and seven and a half months out of three years with the other. The judge ruled that a 20 per cent absenteeism rate is sufficient for dismissal since "an employee must regularly attend work in order to be qualified to perform her job." Of course, with thoughts like these, the judge can forget about a Supreme Court appointment from Mrs. Clinton.

In a Postal Service case, an admitted alcoholic was fired for absenteeism after years of negotiations. The court sided with the Post Office, ruling that the woman was let go not because of alcoholism but because she missed work too much. The lesson: if your non-performing employee is an alcoholic, you'd better hope he stays home, since boozing is an official disability under the ADA.

Even the old-fashioned job interview has come under assault. The ADA explicitly prohibits the use of employment tests "and other selection criteria" that screen out "people with disabilities" - i.e., those with limitations. Prospective employers are being told not to ask any questions about past behavior, whether absenteeism, alcoholism, drug use, or even mental skills. Manuals on ADA implementation give examples of the most obviously illegal questions: "Have you ever been treated by a psychiatrist or psychologist? For what?" "Is there any health-related reason that would prevent you from doing the type of work for which you are applying?" "Are you taking any prescribed drugs that would affect your work performance?"

More Disabled than Thou

Everyone knows that business is mandated to hire and promote disabled people, even if doing so entails extra costs. But how much cost is "reasonable"? Does a small company have to drive itself to the brink of bankruptcy to accommodate one employee? When the quota game starts-as it inevitably will - the questions will mount. A company will have to be able to point to its past record of hiring and promoting disabled people to justify itself in a single case. But will an accused business be able to cite a staff of alcoholics, drug users, and dyslexics as evidence that it did not discriminate against a quadriplegic? What if a black woman is passed over so that a one-legged white male can be hired?

And what happens when "fully abled" people notice that people considered "disabled" are getting better treatment? Given the broadness of the term "disabled," it is getting easier for people to shift their status from abled to disabled. Affirmative action for the disabled will result in more disabled people.

The lobbyists for the ADA told us it would not be costly, would not generate new litigation, and would not break the legs of business. They said it would simply protect the handicapped against the bigoted. Based on such myths, the ADA passed over-whelmingly - 377 to 28 in the House and 91 to 6 in the Senate.

Congress or the Bush Administration could have enumerated the kinds of disabilities included under the Act, but both chose not to. Why? Special interests saw the act as a golden (or, rather, green) opportunity for being classified among America's official victims. Clearly defining what constitutes disability, as Peter A. Susser argues in the Employee Relations Law Journal, would "not ensure comprehensiveness (particularly in light of the fact that new disorders may develop in the future)."

Skeptical conservatives in Congress then took the tack that the exceptions to disability ought to be listed. During the debates, for example, Jim Chapman (D., Tex.) sought to allow restaurants to transfer an employee with an "infectious or communicable disease of public-health significance" out of food-handling. The House passed the Chapman Amendment and so did the Senate. But when the gay lobby objected, the amendment was dropped in conference.

Conservatives did win one small victory. They were able to list some conditions that cannot be considered disabilities, including homosexuality, bisexuality, transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, kleptomania, and pyromania. But, based on past history, it won't be long before the March on Washington is followed by the pyromaniacs' Burndown of Washington, or the kleptomaniacs' Theft of Washington.

The disability lobby likes to compare the ADA to the Civil Rights Act of 1964, and the comparison is disarmingly apt. Both laws establish the government as the discerner of sinister motives behind economic acts. Motives can be important once guilt is already established, as in criminal trials; but to make otherwise innocent actions criminal on federally perceived motivation, as anti-discrimination law does, is fundamentally totalitarian.

At the time the 1964 act was passed, most people thought it was about preventing the use of fire hoses and police dogs against peaceful demonstrators. Instead, it ended up erecting an enormous apparatus of quotas and special privileges for blacks, while trampling the freedom of association, destroying the free market in labor, and setting in motion a competitive bidding process for blacks that carries the Peter Principle out the window. In effect, all the warnings of the opponents came true.

Similarly, the ADA was supposed to make the disabled more independent and include them in the labor market. But it will succeed only in erecting an enormous extra-market superstructure of court precedents, business mandates, special privileges, and quotas. The authentically disabled may be helped by the ADA - but only because of their dependence on this legal edifice. The Act thus creates not independence, but far-reaching dependence on the government.

Most people, even many conservatives, are far too sanguine about interfering with market relations through anti-discrimination law. At the root of this intervention lies opposition to voluntary market relations, and a view of free enterprise as a kind of conspiracy. For example, George Bush's EEOC chairman, Evan J. Kemp, claims that "much of our public policy has been centered on improving society" for "the 5-foot-10-inch, 160-pound, 28-year-old white male with no physical or mental impairments." Huh? This is analysis worthy of Jesse Jackson.

Equal Laws or Special Rights?

The idea of the American system is, or was, that we would have a few strict laws to which everyone would have to adhere, and that these laws would mainly demarcate what is mine from what is thine. They would also punish those who went over the line. This idea is entirely lost on the disability lobby, and others demanding special rights at the expense of liberty and property.

Over the next few years, we can be sure, ADA lawsuits will skyrocket. More and more people will have a vested interest in using the ADA; and the government, always looking for a reason to expand, will be more than pleased to oblige.

The National Council on Disability has suggested areas for future complaints: a "recent survey found that 48 per cent of private physicians refuse to treat patents who are HIV-positive." That's now discriminating against the disabled. Also, bathroom faucets, public phones, water fountains, supermarket food shelves, and library card catalogues are too high. All these are cited by the Council as in need of correction by the ADA.

The Council, moreover, says that focusing on the currently disabled is not enough. The government should also serve those with "emerging disabilities," such as those who are "adversely affected by secondary smoke" in "public places," i.e., liberals. The Council even suggests that if a fellow employee's perfume gets on your nerves, you should use the ADA to sue your employer. Why? You have a disability (perfume irritates you) and by allowing people to wear perfume, your employer is violating your rights.

The Clinton Administration is requesting that Congress approve another 157 jobs just to handle ADA and other civil-rights paperwork. The Council supports this too, of course, so that the Federal Government can be more "sensitive to the needs" of disabled "African Americans, Native Americans, Hispanic and Latino populations, Asian Americans, Pacific Islanders, and other minority populations." (Why do today's federal documents read like a Maya Angelou poem?)

The Council also points out, as if we had to be told, that "minority women with disabilities" have "three possible categories" of discrimination. The point is illustrated by the case of an Atlanta medical clinic that asked Esther Atakpa, a Nigerian citizen, to take an HIV test before she was given care. The woman refused, and so was refused service. Miss Atakpa filed suit in the U.S. District Court in Georgia under both the Americans with Disability Act and the Civil Rights Act. The ACLU is picking up all her costs.

Chilling Effect

The number of complaints, however, will never measure the degree to which this, act is radically changing American business. The threat of a complaint is as effective as the complaint itself. The hundreds of pages in the Federal Register spelling out what the ADA is supposed to mean don't come close to exhausting the possibilities.

Activists claim that 43 million Americans are disabled. But this is nonsense. We need to face the fact that no two people are alike. Each of us excels at some things and not at others. We have strengths and we have weaknesses. (I, for example, am driven crazy - a protected disability - by the ADA.) That's what makes us human.

In 1986, Ronald Reagan gave the manager of Friendly's restaurant in Muncy, Pennsylvania, an award for voluntarily accommodating disabled employees. A wheelchaired dishwasher needed a special plastic apron to keep dry while sorting dishes, and a deaf employee required communications in writing. These days such examples sound quaint.

The disabled deserve our compassion and our help, as long as they aren't trying to socialize America. That's why we need to return to the time when a restaurant manager was a heroine for helping the disabled voluntarily.