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Happy Birthday, Americans with Disabilities Act
[July 26, 2002]

By S. M. Oliva

Only in Washington do inert acts of legislation get birthday parties. Yet this morning, the U.S. Equal Employment Opportunity Commission is staging one for the Americans with Disabilities Act, which turns 12 today. And much like an adolescent child without proper education or adult supervision, the ADA continues to wreak havoc throughout the American business community, making it arguably the most damaging piece of legislation to economic freedom in this generation.

Naturally, the EEOC sees things differently. As part of today’s festivities, the EEOC will give a posthumous award to Justin Dart, Jr., “for his lifelong advocacy of civil rights for people with disabilities,” which culminated in the ADA’s passage in 1990.

The notion that the ADA grants “civil rights” to the disabled is somewhat misleading. It’s not as if, prior to 1990, people could go around shooting the blind, arbitrarily imprison the deaf, or deny property rights to amputees. All people enjoy the same fundamental rights under the Constitution, or at least they should. But under the federal regime of laws like the ADA, the protection of individual rights—the proper mission of government—has been replaced with the distribution of benefits to aggrieved special interests. To be fair, it’s not just “cultural minorities” who get such protection; Too many corporations have sold their capitalist soul to the devil of tariffs, subsidies and corporate welfare. But that does not excuse the continued irrational and immoral assault on the rights of businessmen, who are the principal victims of the ADA and its case law progeny.

In the Supreme Court’s recently completed term, there were four major cases dealing with the ADA, each of them offering a scenario so absurd you’d forget that you’re living in a nominally capitalist society. In one case, an individual with severe liver disease brought suit against an oil company for denying him an oil rig job on the grounds that the job posed an imminent threat to his life. He sued because the company was trying to protect his interest (as well as their own). The Supreme Court found for the oil company, but the mere fact that such a case can even be litigated today shows just how obscene the ADA’s depth and scope have become.

In another case, an employee claimed a disability because she—get this—couldn’t actually perform two of the four tasks associated with her job. Is this really about “civil rights” for disabled Americans? Do people have a right to any job regardless of their qualifications? After all, what’s to stop an otherwise healthy person from claiming they’re “disabled” because they simply can’t perform a given job. When do the demands of any interest group finally yield to the property rights of business owners?

Even though the Supreme Court has been somewhat sympathetic to businessmen this term on the ADA, the justices themselves remain radically inconsistent. Two terms ago, they found the ADA required the PGA Tour to change the Rules of Golf—which date back hundreds of years—simply so a disabled player could be “reasonably accommodated.” It’s that kind of language which makes it truly impossible for business to function. After all, what is “reasonable.” In this term, the Court seemed to suggest that reasonable didn’t have to mean “effective;” in other words, businesses probably don’t have to totally sacrifice their self-interest to appease the disabled. But that was not a concrete finding, and a number of justices seemed to think the ADA means: “The disabled? Given them whatever they want!”

One thing is clear. After 12 years of litigation, oversight and regulation, the ADA remains a dark cloud menacing every businessman in America with the threat of lightning and torrential downpours if they even try and assert their right to privately contract with employees. That the government celebrates this is not unexpected in the least. The same government which expends untold effort trying to convince the American people that business is a parasitic organism which only feeds off exploited workers is a government which rejoices in every last ounce of force it’s able to initiate against individual rights and economic freedom.


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