Jewish World Review April 23, 1999 /7 Iyar, 5759
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Now the administration wants to broaden definitions under existing categories and add some surprising new ones, as well.
Last week, White House officials floated ideas for a new federal law forbidding employers to discriminate against parents. The proposed bill, which will be introduced in the Senate in the next few weeks, would allow parents to sue if they thought an employer had failed to hire or promote them if they limited their working hours in order to spend time with their children, for example.
The administration has also filed briefs in two cases that will be heard next week by the Supreme Court, which would drastically broaden the definition of disability to include well over one third of all Americans who suffer from correctable medical problems such as near-sightedness or high blood pressure. And the administration is also on record as favoring laws to forbid discrimination on the basis of sexual orientation.
What's wrong with including so many more categories under our civil rights laws? To answer that question, it's important to remember how the federal government got involved with forbidding discrimination in the first place.
After all, discriminating -- the act of distinguishing between certain things, people or behavior -- is something all of us do all the time, usually for good and proper reasons. When Congress passed the Civil Rights Act of 1964, however, it outlawed a specific kind of discrimination -- based on race (sex was thrown in by a Southern senator who hoped it would kill the bill, and religion was added almost as an afterthought) -- which was not only irrational but which government itself had wrongly perpetuated.
Congress' authority for outlawing racial discrimination was the Commerce Clause of the Constitution, under the theory that such discrimination interfered with interstate commerce.
But it's not at all clear that the kinds of discrimination the Clinton administration would now like to prohibit meet these criteria. Discriminating against employees who won't work overtime or who will put in fewer hours per week in a salaried position isn't irrational, it may be good business. Although not every parent will choose to forego overtime or cut short his or her work week, some will. And employers should be able to discriminate against workers -- parents or not -- who won't put in the hours the employer deems necessary to do the job, while rewarding those who will.
There's nothing invidious about this, as there was with assuming that every black person was incapable of performing a job, no matter what his credentials or qualifications.
Likewise, the administration's efforts to expand the definition of disability will place even more onerous burdens on employers who are already stretched to accommodate impairments that Congress didn't give much thought to when it passed the Americans With Disabilities Act in 1990.
For example, most ADA complaints against employers today involve employees who claim mental health problems or back pain. New guidelines from the Equal Employment Opportunity Commission require that employers reassign employees who suffer from stress-related illnesses or depression to new supervisors if they claim their current supervisors increase their stress or depression, for example. Now the administration wants to add to the growing list of the 'disabled' anyone who suffers a correctable impairment -- a far cry from the standard in the law itself, which refers to a disability that "substantially limits life activities."
When will it all end? The Supreme Court should have the good sense to reject the administration's elasticized definition of disability. And surely the Senate will rebuff the notion of a Parental Discrimination Law.
the only group left without its very own anti-discrimination law may be
native-born, happy, heterosexual, white males with 20/20 vision and in
perfect health who don't have kids.
04/14/99: Why we’re a nation of procrastinators