Marta Russell

Despite

a growing economy and a 29-year low official unemployment rate, potential

workers with disabilities remain chronically unemployed. Nine years after the

passage of the Americans with Disabilities Act (ADA), national employment

surveys show no real statistical gain in employment for people with

disabilities, rather, the unemployment rate remains at 70 percent, with only

three out of ten working full or part-time compared to eight of ten of those

without disabilities — a gap of fifty percentage points.

Acknowledging

such stagnation is not acceptable, President Clinton directed federal agencies

and departments to take concrete action by hiring these potential workers. His

secondary objective, he explained, was that by taking such action government

would provide a model for private industry to follow.

Federal

employers have had a concrete affirmative action requirement (Section 501 of the

Rehabilitation Act ) to hire disabled workers since1973, however, the government

has not complied for over 25 years. To attain a handicapped work force of 6

percent, for example, Environmental Protection Agency Administrator Carol

Browner will have to hire an additional 915 workers with disabilities. If

government successfully overcomes its own stagnation and implements Clinton’s

executive order it will have done what government has needed to do for a long

time – expand employment for a disadvantaged population.

Let’s

take a leap of faith and assume it will. But does that mean the private sector

will follow suit?

Private

employers have no affirmative action obligation. The Labor Department urges

employers to hire people with disabilities, but does not mandate that they do.

Disabled people, instead, have had to rely on the ADA when they face employer

discrimination. So far the business track record is marred with resistance.

Instead

of providing reasonable accommodations to workers, business has used the courts

to construct legal obstacles to avoid hiring or retaining workers with

disabilities. Cases are being decided by judges, not even getting to the jury

stage where disabled workers might receive a more hospitable reception. Studies

show that in the first eight years, defendants (businesses) overwhelming

prevailed in ADA discrimination cases at both the trial and appellate court

levels. An American Bar Association study by its Commission on Mental and

Physical Disability Law shows that out of the more than 1,200 cases filed since

1992, employers won in 92 percent of the cases, while employees won only 8

percent of the time. Ohio Law professor Ruth Colker asseses "only prisoner

rights cases fare as poorly."

It

is clear that judges have sided with business. They are not granting medical

conditions the legal standing of "disability" and are dismissing

plaintiff’s cases before they are heard on the merits. They are failing to apply

equal rights to disablement or to understand the purpose of reasonable

accommodations. Rather there is a judicial tendency to view ADA plaintiffs as

seeking special benefits and treatment instead of equal rights.

The

judicial backlash can be explained through the lens of law and economics

ideology, which views the ADA as a hidden subsidy granted disabled individuals

at the expense of employers.

Law

and Economics icon Judge Richard Posner, a self appointed protector of business,

explains the cost/benefit schematic of the ADA:

If

the nation’s employers have potentially unlimited financial obligations to 43

million disabled persons, the Americans with Disabilities Act will have imposed

an indirect tax potentially greater than the national debt. We do not find an

intention to bring about such a radical result in either the language of the Act

or its history. The preamble actually "markets" the Act as a cost

saver, pointing to "billions of dollars in unnecessary expenses resulting

from dependency and nonproductivity." §12101(a)(9). The savings will be

illusory if employers are required to expend many more billions in accommodation

than will be saved by enabling disabled people to work.

In

liberal capitalist economies, redistributionist laws which (if enforced) will

cost business are necessarily in tension with business interests, which resist

such cost-shifting burdens.

Business

was opposed to the ADA from the beginning. The National Association of

Manufacturers, the Chamber of Commerce, the American Banking Association, and

the National Federation of Independent Businesses all publicly voiced opposition

to the ADA. The year the ADA was signed (1990), the Cato Institute, a

conservative libertarian think tank, called on President George Bush "to

ask Congress to reconsider" the ADA since from the standpoint of free

enterprise, it represented a re-regulation of the economy that was harmful to

business. Paul Craig Roberts, an economist at the Center for Strategic and

International Studies in Washington, warned on the day the Act was signed that

"{the ADA] will add enormous costs to businesses that will cut into their

profits." The pro-business Washington Times made its objection clear from

the onset in an editorial "Handicapping the Economy: the Downside of the

New Disabilities Law."

Two

years later, economist Richard Epstein devoted an entire chapter (FORBIDDEN

GROUNDS, THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS) opposing the concept

of civil rights for disabled people. Starting from the premise that the ADA is a

redistributive interference with the market; he concludes that the ADA should be

repealed.

Five

years after passage, Rick Kahler opined in a piece entitled "ADA Regulatory

Black Hole" that "the ADA make[s] getting out of business look more

profitable all the time", while Reader’s Digest called it, "a law that

is disabling our courts." In 1995, the director of regulatory studies at

the Cato Institute wrote "If Congress is serious about lifting the

regulatory burden from the economy, it must consider major changes in, if not

outright repeal of, the ADA. And if Congress is to undo the damage already done

by the act, it should consider paying reparations to cover the costs that

individuals, private establishments, and enterprises have suffered under the

ADA’s provisions."

Businesses

don’t want to hire persons with disabilities because the costs of making

reasonable accommodations and covering health care can cut into profits.

So

Clinton should not expect that business will follow the federal government’s

lead. In this precarious period, it will take more than setting an example; it

will take greater intervention of government to achieve positive outcomes for

workers with disabilities. It would be best if the government would impose and

enforce affirmative-action on businesses to hire workers with disabilities. And

government should consider leveling the playing field by subsidizing health

care, reasonable accommodations and other costs to make it more palatable to

private employers. Successful intervention holds the promise of lessening the

burden on people with disabilities to prove their cases in courts hostile to the

rights of disabled individuals or which view "disability equal rights"

as a subsidy to unfairly be paid by business.

Otherwise,

Clinton’s directive, while welcome, will have only a limited impact.