Jewish World Review March 30, 2011/ 24 Adar II, 5771

‘Disabling’ America, One Lawsuit at a Time

By Arnold Ahlert | At one point in time I had my own company in another line of work. It was very small, (just me and my wife) and I ran it from my house. There was a particularly annoying aspect of it involving paperwork, the kind that is tedious and time-consuming, and I considered hiring someone else to do it. A young woman I knew, already experienced in filling out such forms, was available and willing to work for us. After giving it some thought, my wife and I decided to pass: the risks of hiring her far outweighed the benefits.

What risks? As I explained to my wife, all that would have had to happen was for her to leave me and the potential employee in the house alone, even for the time it took to go to the store a half-block away, and our entire business could have been destroyed by a "he said-she said" charge of sexual harassment. It didn't matter that I'm not the predator type or that the potential employee had never demonstrated anything remotely resembling that kind of character flaw. In business, if the potential risk is equal to, or outweighs, the benefits of a given investment, one must pass, no matter how reluctantly.

One can only wonder how many other potential employers have made the same calculation.

Which brings me to the latest revisions in the Americans with Disabilities Act, passed in 1990. I have no doubt such legislation was enacted with the best of intentions, that is, to provide genuinely disabled people with the best chance possible to lead the kind of normal life that far too many Americans take for granted.

Yet like most government programs, it has become a Frankenstein monster. In 2008, President Bush signed into law the "ADA Amendments Act of 2008" ("ADAAA"), which clarified and broadened the definition of disability and--just like so many other government programs--expanded the population eligible for protections under the ADA. Thus for example, the new rules now cover "episodic conditions and mitigating measures…expanding disability coverage…many courts had previously concluded were not covered under the ADA," according to law firm Baker Botts L.L.P.

The law firm then states the obvious: "Employers might expect to see an increase in requests for reasonable accommodations, and should review their procedures for responding to such requests to acknowledge this expanded disability coverage. Employers might also expect to see an increase in litigation testing the limits of the new provisions, at least in those states that do not already have more generous state disability discrimination laws."


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Translation: trial lawyers are going a have a field day shaking down businesses on behalf of people whose "disabilities" will undoubtedly stretch decent Americans' credulity to the breaking point. Nothing illustrates this better than a Fox News article on the law in which legal experts reveal the ultimate absurdity:

"Millions of Americans may be disabled and not even know it."

No doubt thousands of ambulance chasers will be more than happy to deliver the "good news." And that's now. As reported by Time Magazine in 2008, "a small group of opportunists and select law firms are responsible for a huge percentage of [ADA] lawsuits," based on non-compliance with the law. How hard is compliance? "Title III of the 1990 Americans with Disabilities Act, covers public accommodations," explains website "[ADA] lays out hundreds of requirements--everything from the permissible height of countertops and mirrors in newer or renovated buildings to how heavy swinging entrance doors can be to the exact location where grab bars must be located in toilets, and on and on. A bathroom alone must meet 95 different standards, on one estimate." Thus, lawyers "can find targets with ease."

And they have. Hundreds of lawsuits have been filed all over the country, often by the same plaintiffs on several different occasions. One such plaintiff, Jarek Molski, 38, disabled in a 1985 motorcycle accident that left him a paraplegic, filed 400 ADA lawsuits against a number of businesses, until a federal judge barred him from filing any more. Groups with noble-sounding names such as Citizens Concerned about Disability Access, and Disabled Patriots of America have targeted businesses in Florida, Georgia and New Jersey. Suits can be brought with no time allowed for businesses to become compliant, and in states like California, statutes which allow for $1,000 or $4,000 in minimum damages, plus attorney fees for each violation, can result in tens of thousands of dollars of damage demands. David Warren Peters, CEO and general counsel of Lawyers Against Lawsuit Abuse, illuminated the level of abuse. "Opportunists see this as a great way to make $12,000 a day or more just by eating out," he said.

EEOC Commissioner Chai Feldblum says the current expansion was worked out between the disabled and business communities. "These are workable guidelines that will help people with disabilities, and it will be workable for employers," she said. Yet attorneys for business owners cite an ominous development in the new law: the burden of proof that accommodation is required is being shifted from the employee, who had to prove why such accommodation was merited, to the business owner who will now have to demonstrate why it is not. Attorney Condon McGlothlen explains where this is inevitably leading. "It's going to be very difficult for employers to argue in just about any case that an employee is exaggerating their disability or that the person isn't genuinely disabled," the attorney told Fox News. Commissioner Feldblum adds insult to injury. "I am hopeful that employers will now move to the next question which is, 'How do we make sure our workplace is welcoming to people with a range of health conditions?

Here's the obvious answer to that question, Ms. Feldman. They don't. Many of them will simply stop hiring anyone with a disability. And if government strong arms them regardless, they will respond by not hiring anyone at all--at least until progressives figure out a way to force businesses to hire workers regardless of whether or not they need them.

No doubt such an idea sounds far-fetched. Yet one suspects that most Americans might consider the idea that an employer, already stressed out by a bad economy, might be less than thrilled with the idea of spending more money to accommodate someone with "post-traumatic stress disorder"--which advocates of the expanded statute claim the courts will consider a disability "in virtually all cases" despite the fact that no condition can legally be considered a disability per se.

Only progressives would be delighted by a law which, as stated above, will classify millions of Americans as disabled--without their knowledge. It's a win-win for those who champion the expansion of government entitlements for the "needy," even as it caters to trial attorneys, one of their core constituencies. It will be sold as compassion, even as it gives businesses yet another reason--along with the highest corporate tax rates in the world, ObamaCare mandates, the FinReg bill and a host of other progressive "solutions" to our dismal economy--not to hire.

When the law was first enacted, I used to tell my friends a joke. I said a business owner had two employees, a man and a woman. One day the man says to the woman, "baby, you're one hot number." The woman sues the business owner for sexual harassment in the workplace. The guy claims he's a sex addict and he also sues the owner under the ADA, demanding the accommodation of a private office to keep him away from the woman. The owner, forced to pay both claims, goes under. It used to be good for a few laughs.

I'll bet no one's laughing now--except the moochers and their enablers.

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