Heeding demands from constituency groups, President Obama orders a $10.10 hourly wage even for the most severely disabled workers under the scope of his federal-contractor order [USA Today] Writes Mike Bennett on Twitter: “As a parent of a disabled son, I would much rather he have a real job at five dollars an hour then a theoretical job at $10.10.”
Client protection be damned: “Asking would-be lawyers standard questions about their mental health, including their history of diagnosis and treatment, could violate the Americans with Disabilities Act, according to the civil rights division of the U.S. Department of Justice.” [ABA Journal]
In the name of so-called universal design — a much-promoted theory that disabled-accessibility features should be designed into all structures, public or private, from the start — Vancouver is adopting building code changes that prohibit use of doorknobs in favor of levers and other mechanisms that are more easily used by the handicapped and elderly. While the ban will apply only to new construction, the city has already deferred to the new thinking by replacing the ornate doorknobs in its Art Deco-era City Hall. Building experts see doorknob bans in private housing construction as likely to spread in the years ahead. [Vancouver Sun] Perennial Overlawyered bete noire Rep. Jan Schakowsky (D-Ill.) has in recent Congresses introduced something called the Inclusive Home Design Act which would mandate some accessibility features in all federally assisted newly constructed housing units.
More: “Vancouver Banned Doorknobs. Good,” writes Colin Lecher at Popular Science. Because the less diversity and private choice and historical continuity, the better.
Federal officials at HUD are making life difficult for a popular Arizona housing complex that specializes in serving hearing-impaired residents because they say it is failing to attract and serve non-hearing-impaired persons. [Arizona Republic]
An agreeably circular road to ADA coverage, via a case from federal court in South Dakota: my new post at Cato.
This fairly gripping New York Times account by reporter Serge Kovaleski gives the backstory of the horrendous Navy Yard massacre — a contract employee with a security clearance had been displaying increasingly florid symptoms of paranoid schizophrenia, yet was not taken off his job — but is missing one angle I was curious about:
On Aug. 9, the director of human resources for the Experts spoke to Mr. Alexis’ mother, who told the director of his previous paranoid behavior, the person with knowledge of the investigation said. His mother told the director that Mr. Alexis’ paranoia tended to subside with time, but that “he likely needed to see a therapist.”
That same day, the director convened a meeting of “senior-level personnel” at the Experts who concluded that he could be sent back to work. The Hewlett-Packard investigation found that the Experts did not attempt to get Mr. Alexis to seek mental health care, a finding that the Experts has not disputed.
…In an e-mail message, the Experts said that a Hewlett-Packard manager in Newport said she was “comfortable” having Mr. Alexis come back to work after he reported hearing voices.
Hewlett-Packard said its manager in Newport was a low-level employee who was not given full details by the Experts about Mr. Alexis’ problems. The company said it has placed that manager on administrative leave.
The missing angle is: what if any role was played by the legal constraints on the various entities that directly or indirectly employed Mr. Alexis? Severe mental illness is a protected condition under the ADA, and employers may not be free to take workers off their duties unless and until they can assemble evidence that would stand up in court documenting a “direct threat,” “undue hardship” or other adequate reason for removal; the law places limits on the employer’s right to demand medical exams to evaluate the exact contours of disability; and privacy rules limit sharing of medically relevant information between different entities, as we saw in the Seung-Hui Cho/Virginia Tech case. All these rules apply to ordinary larger private businesses, but some come in especially stringent form when applied to federal contractors.
Did any of these legal doctrines influence the course of decision-making by which Mr. Alexis received oddly hands-off treatment even as his mental state spun out of control? One hopes a future NYT article will return to take a look at those questions.
Rep. Tim Walberg (R-Mich.) of the House Education and the Workforce Committee will be inquiring into the new “benchmarks” that federal contractors will be required to adopt. Julian Hattem at The Hill has more details, and quotes me:
“They have the power to be intrusive and expensive to contractors that they believe are not playing ball on this,” said Walter Olson, a senior fellow at the Cato Institute. “If the initiative means anything, it means that they are signaling to ‘Please be one of the ones that we think is trying to make these benchmarks, because if we think that you’re one of the ones we think are not trying to make the benchmarks, you will be hearing from us.’”
Earlier here, here and here. As I observed back in February:
To achieve the [7 percent disabled goal], employers will need to hope that large numbers of new hires will turn out to have less visible disabilities, such as back problems, diabetes or (perhaps most useful because most subjectively defined) the array of mental, emotional and behavioral issues that are the most dynamically expansive disability category of all, and which can range from neurosis to learning disability to oppositional defiant disorder to drug and alcohol abuse (if in rehab).
Trouble is, it’s illegal under the ADA for employers to ask job applicants whether they’re disabled, even if the question is offered with favorable intent. So the rules contemplate a fan dance of “invited self-identification” in which workers are given repeated chances at successive stages of the hiring process to announce that they are disabled. Unfortunately for quota compliance, even after getting the job an employee may be too shy to offer such a self-identification, which means the employer may lose any “credit” for the hire. Perhaps equally frustrating, an employee hired with the quota in mind may turn out not to have any disability at all (“Dang it! And she looked so disabled!”).
Caleb Brown interviews me for a Cato podcast on the Administration’s new home-companion overtime rules, which could drive many elderly and disabled persons into nursing homes. Earlier here and here.
Building on my post of yesterday, Competitive Enterprise Institute scholar Hans Bader makes several additional points about the Department of Labor’s new hiring quotas for disabled workers at federal contractors:
- Under the regulations, Bader points out, contractors will be obliged to aim for a seven percent quota for each division, a significantly harder task than if it were just a company-wide quota.
- Dodgy terminology to conceal the reality of quotas is nothing new; in fact, there’s a long history of federal officials’ resorting to euphemism and vagueness to characterize quotas as benchmarks, goals, and so forth.
- While disabled quotas, unlike racial quotas, do not raise immediate red flags of unconstitutionality, there is serious doubt as to whether they are actually a lawful application of the statutes Congress has passed in this area. While one such law does refer vaguely to affirmative action for the disabled, that does not necessarily provide a broad enough basis to authorize the new scheme.
- Will compliance and paperwork on this and a related veteran-quota measure cost federal contractors $6 billion a year, as the Associated General Contractors of America has it? Or less than one-fifth that sum, as OFCCP insists? And does OFCCP face even the slightest consequences if its estimates turn out to be low-balls and the contractors turn out to be right?
[cross-posted, with adaptations, at Cato at Liberty. Edited final paragraph 9/23 to clarify that two quota programs are involved]
On Aug. 27, during the reporter-vacation lull before Labor Day, the Department of Labor’s Office of Federal Contract Compliance Programs finalized its controversial rules requiring federal contractors to adopt “benchmarks” of 7 percent disabled employees in their workforce, a higher percentage than apparently prevails in the workforce at large. [Earlier here, here, here, etc.] OFCCP director Patricia Shiu insists the initiative should not be described as quotas, since contractors falling short will not suffer automatic penalty. Instead, they’ll be thrown into a process of auditing and having their internal procedures put under review and having to demonstrate progress and that sort of thing. Nothing penalty-like about that! Also, if their willingness to go along with this process doesn’t please the federal overseers, they can eventually be debarred from any future contract work, a devastating economic sanction for many firms. Crucially, the feds are applying the regulation to firms’ entire workforce even if only a single division has federal contracts, so that if, say, a food company has one line of business that caters to the military, and nineteen others that do no federal contracting whatsoever, all twenty lines must adopt the quot… sorry, benchmarks. [Cleveland Plain Dealer, OFCCP, Government Executive, Federal News Radio]
Had you heard that disabled-rights activists have staged demonstrations in Washington, D.C. to protest a new Obama administration initiative? Not only that, but the disabled-rights activists are right.
At issue is an awful scheme by the Obama Labor Department, newly headed by Secretary Thomas Perez, to abolish most of the “companionship exemption” to federal wage and hour laws, which has up to now reasonably recognized that serving as a live-in or semi-live-in paid attendant to a sick, elderly or disabled person is not really the same sort of thing as working twelve-hour days on a factory assembly line. I’ve got a new post at Cato at Liberty looking at some of the consequences we can expect from making it far more expensive to provide a kind of round-the-clock care that often keeps people out of nursing homes. More: Bloomberg.
Some background on the controversy, beyond the links in the Cato post: National Council on Disability (a federal disability-advocacy agency that was not entirely prepared to toe the line in favor of the new regs); Stephen Miller, Society for Human Resource Management; Kaiser Health News; Disability Law (“disability rights groups… fear that substantially raising the cost of personal assistance services without increasing Medicaid reimbursements will force people with disabilities into nursing homes”); PHI and Direct Care Alliance (promoting regs); National Association for Home Care and Hospice and more (commercial group opposed); ADAPT (disability rights group opposed).
More reactions: Bill McMorris/Free Beacon, Jon Hyman, Trey Kovacs/Workplace Choice.
Assuming gun ownership should be licensed at all — a big if — there are imaginable scenarios in which a legally blind person might legitimately fire a gun in self-defense or participate in target shooting at a range. Wisconsin is even said to smile officially on hunting by blind persons, presumably to the benefit of those visually impaired who can distinguish partridge sounds in the underbrush from people sounds. To officials in Iowa, however, the issue is pre-decided: “State law bans officials from discriminating against the blind on the basis of their disability, and hence a gun permit cannot be denied solely on that basis, officials tell the [Des Moines Register].” [ABA Journal, Daily Caller [Wisconsin], Lowering the Bar]
Not exactly legal emancipation for this adult of full age, but a step theretoward: A “judge declared Friday that a 29-year-old woman with Down syndrome can live the life she wants, rejecting a guardianship request from her parents that would have allowed them to keep her in a group home against her will. … Hatch wanted to continue working at a thrift store and living with friends Kelly Morris and Jim Talbert, who employed her and took her into their home last year when she needed a place to recover after a bicycle accident. … In the end, Newport News Circuit Court Judge David F. Pugh said he believed that Hatch, who has an IQ of about 50, needed a guardian to help her make decisions but that he had also taken into account her preferences. He designated Morris and Talbert her temporary guardians for the next year, with the goal of ultimately helping her achieve more independence.” [Washington Post] More: Tyler Cowen.
Once again it is rumored that the Senate will take up the U.N.-sponsored Convention on the Rights of Persons with Disabilities. Once more the editorialists at the New York Times are promoting the treaty with some dubious — in some cases, easily disproved — claims about what it would and would not do. I look at the controversy in a new post at Cato at Liberty.