Monday, August 25, 2008

Repeal the Americans with Disabilities Act

The Americans with Disabilities Act, as is often the case with liberal legislation, has created some unintended consequences, which, in many cases, has made life worse for disabled people and placed employers in Catch 22 situations. I was fortunate to be an employer before this act was passed, but even then I knew better than to ask certain questions or report certain truths. For example, if I caught someone stealing or dealing drugs on my premises and fired them, I would never give that as a cause for termination, nor would we ever tell that person's tentative next employer anything other than "would rehire" or "would not rehire".

We would also never tell anyone whom we did not wish to hire anything other than that the job was filled. Why subject oneself to litigation? Employers are not stupid, and will try to hire employees that will serve their interests. What is stupid is trying to force employers to hire someone not in their interest, like a grossly obese woman to be a receptionist at a weight loss clinic, or someone with all kinds of pierced body parts and studs to be a waitress. The ADA has added an unacceptable dimension to the normal constraints on the freedom of speech of America’s employers and on the employer’s right to run his business as effectively as possible – and disabled people are paying the price.

Are You Able to Obey This Law?

By John Stossel June 07, 2006 RealClearPolitics (Excerpts)

Some shortsighted employers don't give jobs to people with disabilities, even when the disabled could do the work. Politicians thought the way to stop this discrimination was to make it illegal. That's what politicians tend to do. But in the real world, even Congress can't wish problems away. Their well-intended solutions create nasty unintended consequences. The Americans with Disabilities Act (ADA) is proving to be yet another sad example.

Consider what an employer has to do to try to obey the ADA. Even the job interview is a minefield. Julie Janofsky, a labor lawyer, patiently explained to me that it is forbidden even to ask certain disability-related questions. If an applicant comes to my office with his arm in a sling, I can't ask whether he's disabled. It would be "discriminatory."

I can't ask about past drug addiction -- or even about current addiction, if the drugs are legal. "You can't ask me if I'm addicted to Valium," said Janofsky, "because if I'm addicted to Valium now, I'm protected under the ADA."

How are employers supposed to understand this? I confronted Gilbert Casellas, head of the Equal Employment Opportunity Commission under President Clinton. He said the ADA is a wonderful law, and had the nerve to say it isn't complicated. "None of this stuff is rocket science," he said.

So I asked him about Janofsky's example: If you come to me applying for a job, and your arm is in a sling, can I ask you why your arm is in a sling?

"You can ask -- you know what? I'm going to ask you to stop the tape, because we're getting into -- "

I was incredulous. "You want to check?"

The head of the EEOC had just said the law wasn't complicated, and every employer in America is supposed to obey it, but he had to consult one of his experts….

That's the point! Every employer is in a specific situation, and lawyers are ready to pounce if they don't do everything according to the law. And the laws are now so complex, it's impossible to obey all of them. Exxon gave Joseph Hazelwood a job after he completed alcohol rehab; when Hazelwood then let the Exxon Valdez run aground, a jury found that he'd recklessly gotten drunk before taking command--and that the company had been reckless to give him the job. So then the company decided people who've had a drug or drinking problem may not hold safety-sensitive jobs. The result? You guessed it -- employees with a history of alcohol abuse sued under the ADA, demanding their right to hold safety-sensitive jobs. Employers can't win. They get sued if they do, sued if they don't….

Complicated laws like the ADA eventually hurt the people they were meant to help. The ADA has led many employers to avoid the disabled. One poll found that since the ADA was passed, the percentage of disabled men who were employed dropped. "Once you hire them, you can never fire them. They are lawsuit bombs," one employer said. "So we just tell them the job has been filled."”


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