Jewish World Review June 5, 2001 / 15 Sivan, 5761
Consider the implications rules for other sports from grade-school to the pros may now essentially be rewritten by the courts to accommodate any and every "disability" say, for example, the baseball player who is a great hitter but needs a motorized scooter to make it around the bases. As if it weren't already bad enough, this decision gives the word "victim" new meaning in our culture.
But the Supreme Court's largesse in its 7-2 ruling may be less about concern for Martin than it was a necessary application of the deliberately vague, Byzantine, and contradictory Americans with Disabilities Act of 1990. The act was crafted because of concerns that some of America's disabled were being wrongly discriminated against in hiring practices and access to public accommodations. To the extent such concerns were valid, it may have seemed that the act was the way to address them. But in the 11 years since it was passed, those who predicted it was a disaster waiting to happen have been proven right. Worst of all, the legislation may have hurt most the very people it was designed to protect.
A Harris company survey for the National Organization on Disability found that employment of the disabled has not shot up under the ADA as its backers predicted. It has gone down. Today about 29 percent of the disabled are employed full or part time, a drop from 33 percent back in 1986. Why the change?
Almost certainly, it's that employers find that the vague provisions of the law make it difficult to comply with and thus they become sitting ducks for lawsuits. What if, in the disabled employee's eyes, he's not promoted fast enough, or given the same kind of work as his peers? Fear of such lawsuits is hardly ungrounded. Between 15,000 and 20,000 employment-based disability suits are filed every year, though routinely, some 90 percent are not adjudicated on behalf of the plaintiff.
That ratio is in itself evidence of a poorly constructed law. But the bigger issue is that win or lose, the costs of defending against a job-related complaint brought under the disability act often run in the tens of thousands of dollars and higher. Frivolous disability lawsuits have become legendary, like the case of the stockbroker who couldn't raise his arm of choice on the trading floor due to an injury, and sued his employer essentially for suggesting he use the other one.
So, rational employers may just try to find ways to avoid hiring the disabled in the first place. That way, they are far less likely to be sued.
Another huge cost of the act is to municipalities. Sure we'd all like to help the wheelchair-ound become more mobile. But in many cities it would actually be less expensive to provide a person in a wheelchair with an on-call bus than to make all city buses wheelchair accessible, as the law demands. Or consider "public accommodations," like restaurants. Today in almost all instances every seat in a restaurant refurbished or newly constructed must be suitable and available to the handicapped, not just, say, half the seats. In this case, the provision has the effect of unnecessarily squandering valuable table space for restaurant owners already on razor-thin profit margins.
Such costs to communities and businesses since the act took effect are estimated to be in the billions of dollars. For communities, that means less money for schools, roads and police. For businesses less money for expansion and hiring, including hiring of the disabled. In fact trial lawyers may be the only ones who've truly profited under the act. Most ominously, the enactment of the ADA and the way it has so predictably played out is more than anything another symptom of a culture ever on the prowl to create new classes of "victims."
Casey Martin may have been ruled the victor in his suit. But it doesn't take much to see that with a decision like this, America, including her disabled,