Ebenezer Scrooge probably wouldn’t like the Americans With Disabilities Act, though even he came around in the end. Like almost everyone else, I’m all for providing ramps, elevators, Braille signage, enlarged bathroom stalls and plenty of simpler accommodations for people with disabilities so they have an opportunity to be productive citizens and participate in as many social and recreational activities as possible.
This commentary isn’t about picking on people who are wheelchair bound or sensory deprived. The issue that inspires the headline above is who exactly qualifies as disabled? Or, put another way, is there anyone left who can be described as “abled”?
Scarcely so, it seems, after reading about recent changes to the ADA described in a May 1, 2009, edition of The Construction Law Briefing Paper put out by the Minneapolis law firm of Fabyanske, Westra, Hart & Thomson (FWHT) (www.fwhtlaw.com). Under the ADA Amendments Act of 2008, “the term ‘disability’ is to be interpreted broadly and in favor of finding coverage under the ADA,” wrote the FWHT authors (their boldface emphasis). That legislation was intended to enlarge coverage under ADA by overriding some U.S. Supreme Court cases that limited ADA’s scope.
Prior to these amendments, “only” about one in six or one in seven Americans qualified as disabled, depending on which advocacy group did the counting. Yet even those advocates’ estimates were low-balled compared with our nanny state Census Bureau, which counts one in five Americans as disabled in some manner. All of them agree that the number is bound to go up due to our aging population.
Sheesh. Look around you. Do one out of every five, six or seven people you encounter at home, in the workplace or transporting their supposedly enfeebled bodies and minds around your neighborhood look disabled to you?
Looks can be deceiving and I confess to not knowing exactly how many of us genuinely ought to fall under the ADA umbrella. I suppose you’d have to count everyone who needs a wheelchair or walker to get around, plus everyone with one or more of the five senses missing or greatly diminished, plus folks whose mental deficiencies prevent them from living without assistance, and also include disease-ridden people who show no outward symptoms. Take another look around. Outside of a hospital or nursing home, does that still come to 15-20 percent of the population? The only way the numbers could possibly add up is if we expand the definition of disabled to encompass everyone with the sniffles or a hangover.
According to the FWHT assessment, “One of the major changes under the Amendments Act is that a person’s impairment must now be judged in its unmitigated state, i.e., without regard to the beneficial effects of any corrective measures (except for ‘ordinary eyeglasses or contact lenses’) that person uses … For example, prior to the Amendments Act, a person whose diabetes was controlled by either diet or medication was not considered disabled under the ADA. Now, regardless of the level of control of the impairment, that person is considered disabled under the ADA.”
Let’s follow that logic - even if you no longer suffer from a disability, your employer still must provide accommodations because … well, it’s not exactly clear why. But I have a theory.
It’s because we’ve become a nation of wimps. The most powerful lobby in our country is the victimization movement, which holds that nobody under any circumstances ought to endure the slightest insult, inconvenience or discomfort, and if anyone does, someone else has to pay.
That someone else usually boils down to business owners. The construction lawyers noted in their briefing: “With the Amendments Act, future litigation will likely no longer focus on whether the individual is disabled under the ADA. Instead, the issues will be whether an accommodation is reasonable and whether particular accommodations would constitute an undue hardship on the business.” In other words, the burden of proof shifts from the individual asserting ADA rights to the business that must spend money to provide accommodations.
The amendments were passed with strong support from both parties and signed into law by compassionately conservative former President George W. Bush. So there is nothing partisan about the victimization movement and resultant nanny state. But before you get too infatuated with Nanny Sam, remember what Thomas Jefferson said: “A government big enough to give you everything you want is strong enough to take everything you have.”
