Top of the News: Commentary
THE DISABILITIES ACT IS A GODSEND--FOR LAWYERS
If it works as its proponents hope, the sweeping Americans with Disabilities Act could open the nation's workplaces far wider to 18 million working-age people with disabilities. Two-thirds of them now are unemployed because physical barriers and discrimination stand in their way. But there's another group of winners: all too able lawyers, who sense a bonanza in the mushy mandates of the ADA.
And a legal windfall is already beckoning. The part of the ADA that requires public places to be accessible to the disabled took effect on Jan. 26. It already has generated numerous private lawsuits and complaints to the Justice Dept., which can then bring its own suits. The provisions that bar employers from discriminating against the disabled, which took effect on July 26, are expected to produce 15,000 complaints in just the first year, says the Equal Employment Opportunity Commission. Many claims may prove to be justified. But if suits under similar state laws are any indication, employers will find themselves poised on the edge of a litigation trap.
One reason is that the ADA's seemingly innocuous requirements are so vague that it'll take the courts years to flesh them out. The EEOC's regulations confuse things further. "It's like a recipe for bread where they don't tell you how much flour or yeast to use," says David A. Copus, an attorney at Jones, Day, Reavis & Pogue. "But the penalty if you don't make a good loaf is a violation of the law."
MINE FIELDS. Some parts of the law are crystal clear. Obvious no-nos for employers: asking directly in a job interview about a disability such as blindness, or even cancer, or requiring applicants to take medical exams before they're hired. And making offices and plants more accessible is turning out to be easier and cheaper than employers had feared. Du Pont Co. has provided special large-print computer software for a PhD chemist with poor eyesight and installed electric lifts for a systems specialist with multiple sclerosis. Most accommodations provided in the past cost employers less than $500 apiece, says Jim Gleich, executive director of Disability Rights Education & Defense Fund in Berkeley, Calif.
Still, the statute has plenty of mine fields for employers. Consider the definition of disability, which includes both mental and physical impairments. There are explicit exceptions for such things as illegal drug use and homosexuality, but a wide range of personality traits or emotional conditions--including stress--conceivably could fall under the law. One Wisconsin lawyer threatened in 1987 to file a wrongful-discharge suit for an employee who was fired after claiming to have finished several tasks she hadn't completed. Her defense: She was a pathological liar. The suit was never filed, but legal experts say it might have a better chance under the ADA.
It'll be just as tough hashing out the rule that employers must provide special arrangements so that disabled workers can perform "essential" job functions. What are essential job functions? Courts will have to decide. Decisions under a decade-old California law resembling the ADA suggest that companies won't get clear rules soon.
FORESIGHT SAGA. In a California case, telephone installer Debra Ackerman sued Western Electric Co., which had fired her after she developed a bronchial infection that, she says, prevented her from fixing gritty cables. A U.S. District Court in San Francisco in 1986 ruled against the company, saying that dusty repair work was not an essential part of her job and that Ackerman still could fix cleaner, modern cables.
But in 1989, a California administrative agency sided with Firestone Tire & Rubber Co., which had dismissed a tire salesman who suffered an injury that kept him from lifting heavy tires. The agency ruled that heavy lifting was an essential part of the salesman's job and refused to reinstate him. The company settled for a small sum with the worker after he appealed.
Some companies are taking measures in the hope they won't be involved in costly cases filling in the blanks in the ADA. Miami-based Burger King Corp. has identified eight jobs for its restaurant workers, ranging from Whopper making to cashier duties. Under a rule that the company will adopt this month, if 70% of the workers in a restaurant can perform all eight duties, the rest can forgo some of them. That gives Burger King leeway in assigning chores to disabled workers.
Less farsighted companies are likely to fall into the law's canyons. The handicapped will be aided by programs that companies such as Burger King undertake and by at least some court decisions. But the big winners figure to be the dueling attorneys on each side of the legal divide. The ADA is a laudable piece of social engineering. But it's also shaping up as a gravy train for the nation's lawyers.Catherine Yang