Government Example Setting Not Enough

Marta Russell

Despite a growing economy and a 29-year low official unemployment rate, potential workers with disabilities remain chronically unemployed. Nine years after the passage of the Americans with Disabilities Act (ADA), national employment surveys show no real statistical gain in employment for people with disabilities, rather, the unemployment rate remains at 70 percent, with only three out of ten working full or part-time compared to eight of ten of those without disabilities -- a gap of fifty percentage points.

Acknowledging such stagnation is not acceptable, President Clinton directed federal agencies and departments to take concrete action by hiring these potential workers. His secondary objective, he explained, was that by taking such action government would provide a model for private industry to follow.

Federal employers have had a concrete affirmative action requirement (Section 501 of the Rehabilitation Act ) to hire disabled workers since1973, however, the government has not complied for over 25 years. To attain a handicapped work force of 6 percent, for example, Environmental Protection Agency Administrator Carol Browner will have to hire an additional 915 workers with disabilities. If government successfully overcomes its own stagnation and implements Clinton's executive order it will have done what government has needed to do for a long time - expand employment for a disadvantaged population.

Let's take a leap of faith and assume it will. But does that mean the private sector will follow suit?

Private employers have no affirmative action obligation. The Labor Department urges employers to hire people with disabilities, but does not mandate that they do. Disabled people, instead, have had to rely on the ADA when they face employer discrimination. So far the business track record is marred with resistance.

Instead of providing reasonable accommodations to workers, business has used the courts to construct legal obstacles to avoid hiring or retaining workers with disabilities. Cases are being decided by judges, not even getting to the jury stage where disabled workers might receive a more hospitable reception. Studies show that in the first eight years, defendants (businesses) overwhelming prevailed in ADA discrimination cases at both the trial and appellate court levels. An American Bar Association study by its Commission on Mental and Physical Disability Law shows that out of the more than 1,200 cases filed since 1992, employers won in 92 percent of the cases, while employees won only 8 percent of the time. Ohio Law professor Ruth Colker asseses "only prisoner rights cases fare as poorly."

It is clear that judges have sided with business. They are not granting medical conditions the legal standing of "disability" and are dismissing plaintiff's cases before they are heard on the merits. They are failing to apply equal rights to disablement or to understand the purpose of reasonable accommodations. Rather there is a judicial tendency to view ADA plaintiffs as seeking special benefits and treatment instead of equal rights.

The judicial backlash can be explained through the lens of law and economics ideology, which views the ADA as a hidden subsidy granted disabled individuals at the expense of employers.

Law and Economics icon Judge Richard Posner, a self appointed protector of business, explains the cost/benefit schematic of the ADA:

If the nation's employers have potentially unlimited financial obligations to 43 million disabled persons, the Americans with Disabilities Act will have imposed an indirect tax potentially greater than the national debt. We do not find an intention to bring about such a radical result in either the language of the Act or its history. The preamble actually "markets" the Act as a cost saver, pointing to "billions of dollars in unnecessary expenses resulting from dependency and nonproductivity." §12101(a)(9). The savings will be illusory if employers are required to expend many more billions in accommodation than will be saved by enabling disabled people to work.

In liberal capitalist economies, redistributionist laws which (if enforced) will cost business are necessarily in tension with business interests, which resist such cost-shifting burdens.

Business was opposed to the ADA from the beginning. The National Association of Manufacturers, the Chamber of Commerce, the American Banking Association, and the National Federation of Independent Businesses all publicly voiced opposition to the ADA. The year the ADA was signed (1990), the Cato Institute, a conservative libertarian think tank, called on President George Bush "to ask Congress to reconsider" the ADA since from the standpoint of free enterprise, it represented a re-regulation of the economy that was harmful to business. Paul Craig Roberts, an economist at the Center for Strategic and International Studies in Washington, warned on the day the Act was signed that "{the ADA] will add enormous costs to businesses that will cut into their profits." The pro-business Washington Times made its objection clear from the onset in an editorial "Handicapping the Economy: the Downside of the New Disabilities Law."

Two years later, economist Richard Epstein devoted an entire chapter (FORBIDDEN GROUNDS, THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS) opposing the concept of civil rights for disabled people. Starting from the premise that the ADA is a redistributive interference with the market; he concludes that the ADA should be repealed.

Five years after passage, Rick Kahler opined in a piece entitled "ADA Regulatory Black Hole" that "the ADA make[s] getting out of business look more profitable all the time", while Reader's Digest called it, "a law that is disabling our courts." In 1995, the director of regulatory studies at the Cato Institute wrote "If Congress is serious about lifting the regulatory burden from the economy, it must consider major changes in, if not outright repeal of, the ADA. And if Congress is to undo the damage already done by the act, it should consider paying reparations to cover the costs that individuals, private establishments, and enterprises have suffered under the ADA's provisions."

Businesses don't want to hire persons with disabilities because the costs of making reasonable accommodations and covering health care can cut into profits.

So Clinton should not expect that business will follow the federal government's lead. In this precarious period, it will take more than setting an example; it will take greater intervention of government to achieve positive outcomes for workers with disabilities. It would be best if the government would impose and enforce affirmative-action on businesses to hire workers with disabilities. And government should consider leveling the playing field by subsidizing health care, reasonable accommodations and other costs to make it more palatable to private employers. Successful intervention holds the promise of lessening the burden on people with disabilities to prove their cases in courts hostile to the rights of disabled individuals or which view "disability equal rights" as a subsidy to unfairly be paid by business.

Otherwise, Clinton's directive, while welcome, will have only a limited impact.