Supreme Court will try to make sense of Americans with Disabilities Act

By Vin Suprynowicz
web posted February 1999

As with most "feel-good" legislation, fans of the Americans with Disabilities Act fought for passage of that original bill by attempting to brand opponents as insensitive to the plight of the blind, the disabled, and the bedridden. They have continued to use such emotional tactics, since.

But the problem with the law is that -- while it was sold as a not-very-costly way for congressmen to "express sympathy" with the plight of the handicapped -- its overly broad prescriptions were in fact bound to create a very expensive legal tangle.

Proponents argued the law would require merchants and employers only to make "reasonable accommodation" for the problems of disabled employees, and who can object to that? If a good worker can be helped to stay on the job through such simple remedies as providing a ramp or a wheelchair curb-cut, or allowing that employee to use (where appropriate) an elevator, a Braille keyboard, or a guide dog, who could object?

The problem is that the law does a miserable job of defining both "disability" and "reasonable accommodation." Congressmen knew full well when enacting this legal legtrap that its real meaning would have to be decided by litigation, and even said so, blithely dismissing objections with a casual, "Oh, the courts will work that out."

The problem with such legislative laziness, of course, is that different courts can in good faith interpret such a broad and ill-written statute in different ways, leaving a series of patchwork of rulings and precedents which are "conflicting and confusing" -- precisely the words the Associated Press used in January to describe the mess which now heads to the Supreme Court.

In the brief span of years since its adoption, the ADA has generated many times more litigation than anyone predicted, and the majority of plaintiffs have been not the deaf or those who use wheelchairs, but rather sufferers from such hard-to-measure "disabilities" as heart conditions, bad backs, migraine headaches, and the sundry manifestations of "stress."

On January 8 the U.S. Supreme Court said it would review a case involving twin sisters who argue they should be protected from discrimination by their employer based on their disability -- extreme nearsightedness.

And what job is it Karen Sutton and Kimberly Hinston say they should not be unfairly denied? They want United Airlines to allow them to be airline pilots.

At the same time, the court agreed to hear related cases of an Oregon truck driver who says he should not have been terminated merely because it turned out he was blind in one eye, and a Kansas UPS mechanic fired for high blood pressure -- which mechanic Vaughn Murphy's attorneys contend is a "disability" covered under the wide-reaching wingspan of the ADA.

So twisted is the current state of our jurisprudence under this ridiculously broad statute, that a lower appeals court ruled against the Colorado twin sisters' desire to become airline pilots not on the common-sense ground that folks with severe visual impairments shouldn't be flying aircraft, but rather because their poor eyesight does not constitute the "kind of disability that substantially limits a major life activity," and therefore is not covered under the terms of the ADA.

This would all be amusing, were it not that 1) it's costing a fortune in time and legal fees; 2) even well-intentioned employers and merchants have no idea what they must do to avoid legal and financial jeopardy -- a major ingredient in the rule of law; and 3) the end result is to heap suspicion and aversion even on those who are legitimately willing and able to work despite an unrelated disability -- the very people this badly-drafted law was initially supposed to help. (Why risk hiring a handicapped person, at all, if he or she can drag you into court at any time and nothing you do can prevent it?)

I wish the high court good luck in cutting through this Gordian knot and restoring some common sense to disability law.

But let's not forget who the real culprits are: members of Congress who were happy to bask in praise for passing some popular measure to "demonstrate their sympathy for the disabled," but who simultaneously declined to do the hard work of re-writing and simplifying this law until the average layman (or, for that matter, the average lawyer) could read it and understand what the heck it means.

Vin Suprynowicz is the assistant editorial page editor of the Las Vegas Review-Journal. Readers may contact him via e-mail at vin@lvrj.com. The web sites for the Suprynowicz column are at http://www.infomagic.com/liberty/vinyard.htm, and http://www.nguworld.com/vindex. The column is syndicated in the United States and Canada via Mountain Media Syndications, P.O. Box 4422, Las Vegas Nev. 89127. Watch for Vin's book, "Send in the Waco Killers," coming in February from Huntington Press.




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