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Jewish World Review July 6, 1999 /22 Tamuz, 5759

Cathy Young

Cathy Young
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Econophone

The underlying problem of the Americans with Disabilities Act is its logic


http://www.jewishworldreview.com --
THE LATEST SUPREME COURT decision reining in disability claims against employers is being hailed by business groups and libertarians as bringing common sense back into an area of litigation run amuck. Advocates for the disabled denounce the ruling as a perversion of logic that will trap many people in a bizarre Catch-22, where they are too disabled to be hired for a job but not disabled enough to be protected by the law.

Strangely, both sides have a point.

One of the cases before the Court involved two pilots, twin sisters Karen Sutton and Kimberly Hinton, who wanted to fly for United Airlines. Both are severely nearsighted; with corrective lenses, they have perfect 20/20 vision and are quite capable of flying. (Both now fly for regional commuter airlines.) However, they did not meet United's requirement that applicants for pilot positions have uncorrected vision of 20/100 or better. The women sued, alleging discrimination on the basis of disability.

The Supreme Court has rejected their claim, saying that the plaintiffs do not qualify as disabled under the Americans with Disabilities Act, since their corrected vision is normal and does not limit them in any "major life activity."

Supporters of the ruling have had a field day making fun of the sisters' claim. They're disabled because of a condition they would have had if they didn't take remedial measures? Are we to think that everyone who wears glasses is "disabled"? At one point during the arguments, Justice Scalia waved his own glasses to underscore the absurdity of this notion.

The ridicule seems well-deserved. But there's one problem: Sutton and Hinton were not hired by United precisely because of the condition they would have had if they didn't take remedial measures.

The most troubling aspect of the ADA is the demand for vaguely defined "reasonable accommodations" for disabilities from a bad back to paranoid schizophrenia -- accommodations that often seem to eviscerate the notion of merit. One federal court has held that a would-be lawyer should get extra time on the bar exam and a distraction-free environment to accommodate her reading disability (a decision that the Supreme Court also struck down, quite rightly, last week).

But the plaintiffs in Sutton v. United did not ask for special accommodations; they were already qualified for the job. They claimed of disability in order to argue that they should be treated as non-disabled. According to the Supreme Court, they are not disabled, and therefore United can treat them as disabled when it comes to working as a pilot. One recalls Mr. Bumble's immortal dictum in Dickens's Oliver Twist: "The law is a ass."

Should the court, then, have ruled for the plaintiffs? United Airlines says that its "bias" against the nearsighted (shared by other major air carriers) is not arbitrary: it's too risky to entrust two hundred lives to pilots who may lose their glasses or contacts during air turbulence.

Perhaps the airlines are being too paranoid. I don't know if any such actual mishap has ever occurred. Moreover, pilots whose vision deteriorates when they're already flying for the airline are allowed to continue if their corrected vision is satisfactory.

But does this policy warrant government intervention? Anti-discrimination laws were supposed to be an exception to the employer's right to set his own criteria for hiring and firing -- an exception for categories in which there was a pervasive and deeply rooted bias, such as race or gender. People who wear glasses aren't exactly a dispossessed group.

It may be unfair that Sutton and Hinton weren't allowed to fly for a major air carrier. But further expanding the state's power to micromanage employer-employee relations -- which surely would have been extended to far more questionable cases -- is too high a price to pay for correcting this unfairness. In the end, the court probably did the right thing.

If it had to resort to rather tortuous logic to do so, that may point to an underlying problem with the law itself.


JWR contributor Cathy Young is co-founder and vice-president of the Women’s Freedom Network and author of Ceasefire! Why Women and Men Must Join Forces to Achieve True Equality Send your comments to her by clicking here.

Up

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©1999, Cathy Young