Employers and the newly expanded ADA

by Walter Olson on December 1, 2010

In the ADA Amendments Act, signed by then-President George W. Bush in 2008 and taking effect the next year, Congress drastically expanded the scope of disabled-rights law, to cover, for example, persons “regarded as” disabled, as well as other formerly uncovered categories. According to one attorney advisor, employers from here out should basically assume everyone in their workforce is going to qualify as “disabled” if push comes to shove: “Challenging the employee’s ‘disability’ status is a waste of time with the new expanded definition of ‘disability’.” [Robin Shea, Employment and Labor Insider]

{ 29 comments }

1 Bob Neal 12.01.10 at 8:10 am

We tell everyone now the ADA-AA stands for:

Assume
Disability
Always
Attempt
Accommodation

According to the EEOC, we’re all disabled now. The ADA-AA is a complete joke. An expensive joke, but a joke nonetheless.

2 Aaron Worthing 12.01.10 at 10:55 am

um guys, the “regarded as” prong of the definition has been in the act since 1990. and it has been in the rehabilitation act of 1973 since, well… 1973.

What they have done was cut back on the ridiculous limiting definition of “regarded as.”

And its not really all that unique.

For instance, imagine this scenario. Imagine that a white guy is really tall. So he applies for a job and the employer looks at him and thinks “this guy must really have a black ancestor. And i don’t want even one drop of black blood in my employees.” So he refuses to hire him based on that.

Now suppose it turns out that there is no evidence at all that this guy has a single black ancestor. He is not “black” by any definition of the term.

Does that mean he didn’t face racial discrimination?

No. And that is black letter law. He is a victim of racial discrimination because he was discriminated against based on what they regarded his race as being.

So let’s try a different scenario. Imagine that a man wore sunglasses to a job interview. So the interviewer decides he must be blind and refuses to hire him.

Does it matter if his eyesight is perfect? again, no.

And consider that we would definitely allow lack of knowledge to be presented as a defense. If a man asserts he was discriminated agaisnt because he was a mormon, he would first have to prove his employer knew he was in fact a mormon. If the employer can show he had no idea, it becomes impossible to prove intentional discrimination. So once again, reality as it is perceived controls.

3 Aaron Worthing 12.01.10 at 10:58 am

also the amendments made it clear that you were only entitled to accommodations if you were “actually” disabled. So the regarded as prong and the record of impairment prong is only relevant if the employer deliberately refuses to hire you based on a belief you are disabled (including if you are merely regarded as being disabled, or have a record of it). The man in my example mistaken for a blind man cannot be discriminated against based on the false belief that he is blind, the right to be free of discrimination does not include a right to reasonable accommodation unless he is presently and actually disabled.

4 Jackie Chiles 12.01.10 at 12:13 pm

Mr. Worthing predictably ignores the fact that the duty to provide reasonable accommodation is just one of the burdens imposed on employers by the ADA – burdens made considerably heavier by the amendment.

5 DensityDuck 12.01.10 at 12:15 pm

“The man in my example mistaken for a blind man cannot be discriminated against based on the false belief that he is blind…”

This is a bit confusing. Are you saying that it’s okay to follow discriminatory practices as long as you’re wrong about what you’re being discriminatory about?

6 Aaron Worthing 12.01.10 at 12:44 pm

jackie

by ignoring, you mean i specifically addressed it? try again.

density

> Are you saying that it’s okay to follow discriminatory practices as long as you’re wrong about what you’re being discriminatory about?

the opposite. if you mistakenly think the guy is blind, and you discriminate against him, its still an ADA violation. just as if you mistakenly think a guy is part black and engage in racial discrimination based on that–then that is a violation of the civil rights act of 1964.

7 Mike 12.01.10 at 5:16 pm

Aaron wrote: “The man in my example mistaken for a blind man cannot be discriminated against based on the false belief that he is blind..”

I think he can……A man wearing sunglasses comes in for an interview. I assume he is blind when he is not. I reject him soley based on my false belief……..

8 Bill Alexander 12.01.10 at 7:39 pm

A man wearing sunglasses comes in for an interview. If he has a cane or dog, I assume he is blind. Otherwise, I assume he is using drugs and his eyes are dilated. I also assume he wouldn’t schedule an eye doctor appointment of uncertain length just before a job interview. If an eye emergency, I would expect him to mention it as way of explanation in our conversation.

9 gitarcarver 12.01.10 at 11:38 pm

Dang Bill, that is completely well reasoned and well said.

It has to be against the law. ;)

10 Aaron Worthing 12.02.10 at 9:45 am

Bill, Mike,

The law has said, since 1990, that you if you assume he is blind and discriminate against him based on his perceived blindness, that is unlawful.

Now of course if being able to see is necessary for the job that is another thing, but then that is not discrimination under the act.

But do explain to me why it is okay to refuse to hire a man just because he is blind, or you incorrectly assume he is.

11 Jack Wilson 12.02.10 at 12:00 pm

The liberal goal seems to be: ‘hire the first person who shows up for any job’.

12 gitarcarver 12.02.10 at 3:25 pm

But do explain to me why it is okay to refuse to hire a man just because he is blind, or you incorrectly assume he is.

1) Because it is my company. Part of that means that I am going to hire the best people for the job. My judgment for what is best for my firm should be given preference over an academic or hypothetical situation such as the one you are putting forth. Because…..

2) …… only in the vacuum of academia and legislatures does the idea that two candidates for a job are identical in every aspect other than the one being examined. It is easy to ask why a person is not hired, but when there are multiple candidates that are close in abilities, there is never one determining factor. Your question, and the law, wrongfully assumes that when hiring there is ever only one factor that swings a decision one way or the other.

3) Such beliefs as given above means the business owner must justify his decision to people that generally don’t hire because of a law made by people that don’t hire. The business owner must prove they didn’t do anything wrong, rather than the opposite side proving that the owner did something wrong. The owner is guilty until proven innocent.

4) The law sets up an impossible situation for employers. On one hand, the law says “don’t look at their disability.” Then in the next breath, the law demands that you take into account the disability.

13 Aaron Worthing 12.02.10 at 4:59 pm

gitar

so you would object to laws outlawing racial discrimination, too? i mean indeed everything you said would apply to one aspect or another of the civil rights act of 1964.

14 gitarcarver 12.02.10 at 6:20 pm

If you want to talk about “racial discrimination,” then we can talk about that.

But that wasn’t your question, was it?

“Racial discrimination” is not the same thing as being “disabled” and any inference that the two are similar, much less the same, does history and racial equality a disservice.

15 DensityDuck 12.02.10 at 9:28 pm

gitarcarver: discrimination is discrimination, regardless of what flavor. If you refuse to hire blind people because you don’t like blind people, then it is exactly like refusing to hire black people because you don’t like black people.

As Aaron points out, if “must be able to see” is a job requirement, then yes, you can refuse to hire a blind person for the reason of physical incapability (although you need to show that the sight requirement is a job function and not just a workplace failure-to-accomodate.)

16 gitarcarver 12.02.10 at 10:02 pm

Density,

Are you really trying to equate “refus(ing) to hire a man just because he is blind, or you incorrectly assume he is” with disliking someone?

Your second paragraph makes my point – the employer is assumed guilty in cases like this as he must prove that he did not hire someone on the basis of a physical incapacity.

As I said, there are a lot of variables going into a hiring decision.

But I’ll play the game. Assume for a moment that there are two identical twin applicants as far as experience, education, personality, etc are concerned. This can never happen, but since this is a favorite game of those who love the ADA, I’ll play along.

The two “twins” are identical except one is blind. His blindness will require me to install additional equipment and his productivity will be less than that of his other twin.

Now, who do you hire? You cannot hire them both as you only have one spot open in your company.

Who do you hire?

17 gitarcarver 12.02.10 at 10:11 pm

One last thing Density,

If we are going to claim that “disliking” people is “discrimination,” then everyone who was ever turned down for a job was discriminated against because the person who got the job was “liked” more than they were. The employer didn’t “like” something about the applicant and turned them down.

Jack Wilson (commenting in this thread) is right. The goal seems to be that an employer must hire the first person who walks in the door. Of course that will lead to “discrimination” lawsuits by people who couldn’t get to the employment office at the earliest time.

And by the way, if you don’t like my comment, you must be discriminating against me, right? (Said in jest. Please take it as such.)

18 Aaron Worthing 12.02.10 at 11:58 pm

Gitar

> “Racial discrimination” is not the same thing as being “disabled” and any inference that the two are similar, much less the same, does history and racial equality a disservice.

Oh, right. You know because the discrimination you face must be exactly as awful as what black people have faced before you can ask for legal protection or even denounce it, right? I mean its not like people have ever mass murdered us, like in the holocaust, right?

Oh, except they did. Its called the T-4 program, rightly considered the dress rehearsal for the holocaust. Google it. Hitler decided to eliminate the “useless eaters.”

But no, explain to me why my school should have been allowed to deprive me of my right to an education? You know, because clearly I am incapable of education, right?

And when I went to take the law school admission test, the people running the exam (called the LSAC) denied any and all accommodations. When dragged to court over this, they claimed that I had no business being a lawyer. Well, today I am corporate counsel for a mid-sized health care agency. They hired me with no knowledge of my disabilities, only judging me on my own merit. So do you think maybe the LSAC was being a tad irrational?

Seriously, do you think I am stupid? Do you think I am incapable of learning? Well, my high school decided it was better to drive me out than even risk me dragging down their test scores (and accommodation was unthinkable). You are talking to the only high school drop out to go on to graduate from Yale Law School. And you find nothing irrational about that?

I see people on this very site say ignorant and bigoted things about disabilities. They tell us that lawyers must read and thus dyslexics are unqualified. But if sight reading was required, then how do blind lawyers manage it? The assumption always is with certain people that “they can’t.” Like do you think a kid missing an arm belongs on the swim team? Would you think a coach is wrong for refusing to let the kid even try out? Tell the truth.

Then after you tell the truth, google “Patterico’s Pontifications” right now and you will see the answer to that question, in video form.

You want to have unfettered discretion to discriminate against disabled people based on whatever irrational beliefs you might have. But you apparently concede you can’t be trusted not to discriminate against black people. How about women? Should they have legal protection? What about people with different religious beliefs? Should you be able to hang up a sign that says “no Jews allowed?”

And then what happens to those handicapped people who can’t find gainful employment? Some kill themselves and other remain as a burden on society, either a charity case for family or on the public dole. Only a lunatic would think that is the ideal outcome.

I have faced greater discrimination than any person I know, which includes people of all races, sexual orientations, you name it. And when you dismiss it because supposedly it is not as bad as what happened to black people, i consider it a personal slap in the face. Yeah, of course there are people who have faced worse than me. But what i faced was bad enough.

So don’t tell me there is no irrational discrimination against the handicapped. I have nearly forty years of life experience to contradict you.

19 Jack Wilson 12.03.10 at 7:55 am

I wonder if Aaron would allow people to discriminate when it comes to having intimate relations. Or should the law require ‘first come first serve’?

20 Aaron Worthing 12.03.10 at 8:42 am

jack

Sure, Jack, remember when the Civil Rights Act of 1964 mandated that you MUST sleep with people of another race? /sarcasm

What a complete non-sequitur.

21 Jack Wilson 12.03.10 at 9:39 am

Aaron, the Civil Rights Act of 1964, instead of creating all those Great Society bureaucracies, should have been one sentence:

‘Jim Crow’ laws which require racial discrimination are now prohibited by federal law.

22 gitarcarver 12.03.10 at 10:01 am

You want to have unfettered discretion to discriminate against disabled people based on whatever irrational beliefs you might have.

Obviously you don’t understand what is being said in conversations like this. All I have said is that I want the ability to hire those people that I know will benefit my company. You talk a great game about “competing” and how any one that has ever turned you down must be a discriminating bigot of some type, but you fail to realize that it is you who look at people and say “they aren’t the same.” It is you who look at people and say “you see, they can’t be treated the same and we must help them and treat them like little lost puppies.”

There is discrimination in this thread, and you believe in it.

But you apparently concede you can’t be trusted not to discriminate against black people.

Apparently you can’t look at a person without seeing a disability, their gender or their skin color. The only concession to discrimination here is that your views are more bigoted than anyone else.

And then what happens to those handicapped people who can’t find gainful employment? Some kill themselves and other remain as a burden on society, either a charity case for family or on the public dole. Only a lunatic would think that is the ideal outcome.

Broken glass theory.

You see Aaron, what you refuse to accept is that for the most part (there are always exceptions) employers will hire people that are best for their company. It allows the company to stay profitable, expand, pay better salaries, taxes, etc. You believe that a business should be forced to hire people that will hurt their company.

I look at people and see what they bring to the party. You look at them and see labels.

If there is discrimination against people, it is ideas like yours that not only allow it, but force it upon people.

23 Aaron Worthing 12.03.10 at 10:43 am

Gitar

All your claims that the free market will never discriminate irrationally against the disabled sound all well and nice in isolation.

Until you remember that you agree that the Civil Rights Act of 1964 should be in place, or at least its rules against racial discrimination. And no one can deny that there has been irrational racial discrimination for decades.

So you agree that people irrationally discriminate based on something as silly as a difference in pigmentation. But you think that when a person has a real difference they will approach the problem with rationality. If they can’t get the easy stuff right, what chance do they have with the complicated crud?

Seriously, go back and read Richard Current’s book about Thaddeus Stevens. Count the numerous references to hellfire, brimstone (aka sulfur) and so on. Why does this historian keep doing that? Because Stevens was clubfooted and there is a superstition that people with clubbed feet were the children of the devil, their deformed limb being called a “cloven foot.” Does that qualify as irrational prejudice in your mind?

And you know what stevens did? He was the father of the fourteenth amendment and probably the most successful advocate of equality of opportunity this country has ever seen.

But that is the big hole in your logic. Employers can’t be trusted on race, but they can be trusted on disability.

> any one that has ever turned you down must be a discriminating bigot of some type

Given that they actually said bigoted things, yeah, I think so. Seriously, you weren’t there, but you presume to judge the situation?

The truth is that you don’t want to admit that my claims of facing discrimination are plausible because it would utterly undermine your argument. If I have faced that level of discrimination, then gee, maybe we do need a law, right?

> but you fail to realize that it is you who look at people and say “they aren’t the same.”

Some people aren’t actually the same. In fact no two people are alike. The issue is whether the difference is relevant or not. As Stevens said, “no distinction would be tolerated in this purified republic but what arose from merit and conduct.”

> It is you who look at people and say “you see, they can’t be treated the same and we must help them and treat them like little lost puppies.”

So building a wheelchair ramp is paternalism, now? Letting a blind man bring his seeing eye dog on a bus is paternalism? And discrimination too boot?

You know, as opposed to making it so they can’t enter a store and buy things for themselves, or travel on public transportation. You want handicapped people to be a charity case or a ward on the state, and you would call that anti-paternalism, instead of ensuring they have the chance to work for a living and live by the sweat of their own brows. And to think otherwise is paternalistic, toward the handicapped. Amazing.

Doubly amazing, because then you are claiming I am being paternalistic… toward myself.

24 gitarcarver 12.03.10 at 12:00 pm

Until you remember that you agree that the Civil Rights Act of 1964 should be in place, or at least its rules against racial discrimination. And no one can deny that there has been irrational racial discrimination for decades.

Yes there has been. Look at the Justice Department and its irrational attack on discrimination now. Of course, they are only going after discrimination against certain people because others can never be discriminated against, right?

And that is the problem with the law. The law itself discriminates.

But that is the big hole in your logic. Employers can’t be trusted on race, but they can be trusted on disability.

And the hole in your logic is that race and disability are the same thing. They are not. No matter how you try and slice it, they are not.

Some people aren’t actually the same. In fact no two people are alike. The issue is whether the difference is relevant or not. As Stevens said, “no distinction would be tolerated in this purified republic but what arose from merit and conduct.”

I agree. That is why I cannot fathom why you advocate a law that demands that people be hired on a basis other than “merit and conduct.”

So building a wheelchair ramp is paternalism, now? Letting a blind man bring his seeing eye dog on a bus is paternalism? And discrimination too boot?

You were the one that argued that disabled people are a market force. Store owners should build a ramp because it makes economic sense, not because some law says that they should. Furthermore, look where the law has gotten us – all sorts of ridiculous lawsuits that are, for the most part, just money grabbing schemes. You have never met an “accommodation” that you don’t feel is “reasonable.” It doesn’t matter if a building has to be torn down. It doesn’t matter to you if a business has to close its doors. You then turn around and say “see how great the law is! We managed to hurt a business so now no one can go there. No disabled person can shop there. No disabled person can work there! Aren’t we just great?”

You want handicapped people to be a charity case or a ward on the state, and you would call that anti-paternalism, instead of ensuring they have the chance to work for a living and live by the sweat of their own brows.

I never said any such thing and you know it. If anyone is paternalistic, it is you. You are the one claiming that disabled people can never do anything without the weight of the state behind them. You are the one that claims that no accommodation can ever be “unreasonable.” You are the one claiming that you and the state know the needs and workings of a business better than the owners and the people that run it.

I am just curious Aaron, how many disabled people have you hired? How many work for you at this moment?

As I said, there is great discrimination in this thread, and all of it is coming from you.

25 Melvin H. 12.03.10 at 1:57 pm

The only true “equal access” . . .is a closed business; there is equal access for all — as no one has any access.

26 Jack Wilson 12.03.10 at 2:57 pm

I discriminate against those who suffer from a particular syndrome: inability to understand why jobs exist. The employee who thinks a job exists solely for his benefit tends to be toxic.

27 Benji 12.03.10 at 3:09 pm

I feel like Aaron’s assuming that everyone is either pro-ADA or anti-disabled people. Can we still argue that there are disabled persons that deserve protection but that the protection created by the ADA is seriously flawed?

28 Aaron Worthing 12.03.10 at 4:28 pm

Gitar

> And that is the problem with the law. The law itself discriminates.

If by the law you mean the DOJ, you would be right. so you are opposed to the civil rights act of 1964? The voting right act?

How about we just enforce it as intended.

> And the hole in your logic is that race and disability are the same thing.

Except I didn’t say that. in fact, I said the opposite.

> That is why I cannot fathom why you advocate a law that demands that people be hired on a basis other than “merit and conduct.”

Because it doesn’t, any more than the civil rights act does.

> You were the one that argued that disabled people are a market force. Store owners should build a ramp because it makes economic sense, not because some law says that they should

We are allowed to set rules for how the market operates. We don’t tell businesses they are allowed to monopolize a market. Or to collude with others to fix prices. One of the rules of the game is that when you open a store, you have to open it for everyone , unless you can show it would be an undue burden—including cost.

It’s a cost of doing business no different from paying the sales tax.

I mean let me ask you a simple question. do you support the Sherman anti-trust act where it says people cannot collude to divide up a market and fix prices. So Walmart and Target agree to charge $100 for an item, that is illegal. Do you support that rule?

> Furthermore, look where the law has gotten us – all sorts of ridiculous lawsuits that are, for the most part, just money grabbing schemes.

And thousands of students getting an education who wouldn’t have before. Thousands of people getting jobs that would have been either suicides or drains on society. the effect of a law is not simply the suits they bring, but what people do to avoid suit. And to avoid suit disabled people have unprecedented opportunities to live a normal life.

God forbid you ever become handicapped and have to drink the medicine you dish out.

> You have never met an “accommodation” that you don’t feel is “reasonable.”

Not true. I have said even here where I thought something was not reasonable.

> “Aren’t we just great?”

Which I didn’t actually say.

> I never said any such thing and you know it.

It’s the natural result of the policies you endorse. I know you don’t think that irrational discrimination against the handicapped is real, but it is.

> If anyone is paternalistic, it is you. You are the one claiming that disabled people can never do anything without the weight of the state behind them.

No, I said they cannot enjoy equal opportunity without the weight of the state behind it. But once again, you are reduced to claiming I am paternalistic… against myself. Proving you don’t even know what the term means.

Indeed, weren’t you the one who said you helped build wheelchair ramps. So isn’t that paternalism, by your definition? You should have told that guy to just mix the cement and pour it himself, right?

You should show that guy this thread and tell him who you are on it. See how he feels about what you said.

> You are the one claiming that you and the state know the needs and workings of a business better than the owners and the people that run it.

And you are too, when the subject is race.

> I am just curious Aaron, how many disabled people have you hired? How many work for you at this moment?

An equal number to non-disabled, actually. :-)

Benji

> I feel like Aaron’s assuming that everyone is either pro-ADA or anti-disabled people. Can we still argue that there are disabled persons that deserve protection but that the protection created by the ADA is seriously flawed?

Well, then you misunderstand. I have advocated at least one big change. We should simply eliminate all prisoner suits.

As for the rest of it, I won’t say there is no downside. I won’t say there is no abuse.

The question is whether the “horror” of the abuse outweighs the benefit of the law. Of course you should try to calibrate the law to eliminate as much abuse as possible, but if you want to eliminate lawsuit abuse, you need to reform the process by which all lawsuits are screened. For instance, we could require that when you file a suit, you must present affidavits supporting each fact alleged in the suit itself—that this must occur before the other side is even served. You could tighten up the statute of limitations.

Right now today it takes nothing at all to file an employment discrimination case. For instance, it is even easier to allege racial discrimination than disability discrimination. Or to stage a slip and fall. Really the idea that the ADA gives unscrupulous people some kind of unprecedented opportunity to commit fraud is just hysteria. Ask any attorney. ADA suits are harder to pursue than most other discrimination based suits. That might be changing under the new amendments, but there is no reason to think the ADA makes it uniquely easy to get a large payout.

Hell, if you want to look at a crooked area of law, let’s talk class actions. That is a much larger problem than the ADA. This site has worked to stop for instance a class action alleging that people were not sufficiently warned that loud noises make you lose your hearing. The average ADA solo plaintiff gets peanuts compared to the millions raked in these products liability class actions.

I lean toward banning all class actions (yes, including under the ADA), or at least putting in an automatic loser pays rule for it. And honestly in general I like the idea of loser pays as another major way to eliminate frivolous suits. Its not a cure all, but it will reduce it significantly.

29 Jackie Chiles 12.03.10 at 10:31 pm

gitarcarver – Bless you for your patience – but it avails not.

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