ABLEnews Extra

                    ADA: Doing the Job?

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The landmark civil rights act designed five years ago to open the job
market to severely disabled Americans instead has brought a flood of
bad back and psychological stress cases--a result sharply at odds with
what the framers of the law intended.

Since the employment provisions of the Americans With Disabilities Act
went into effect in 1992, more than a third of the complaints filed
with the Equal Employment Opportunity Commission have come from
employees with back pain, emotional problems, and ailments caused by
alcoholism and other substance abuse.

No more than 6% of those complaining have impaired vision or hearing.
About 12% have neurological impairments.The vast majority of the
cases--at least 85%--involve people who already have jobs, a sign
that few disabled people seeking work have found the new act very
helpful.

"The goal of increasing employment opportunities for those of us who
are seriously disabled has not been met at all," said Russell
Redenbaugh, a Philadelphia-based member of the U.S. Commission on
Civil Rights, who is blind. "I believe that there are a vast number of
people with disabilities who want to work, can work and only need the
most modest of accommodations."

"There are certainly some frivolous charges being filed," said
Christopher G. Bell, a Washington attorney specializing in disability
cases.

Michael Auberger, national organizer of American Disabled for
Attendant Programs Today (ADAPT), agreed that "there are a lot of
cases filed that aren't people with disabilities."

When it was signed in 1990, the ADA was hailed as one of the great
bipartisan civil rights laws of the century: It guaranteed that
disabled people would have access to buildings, streets and
transportation facilities, and increased the opportunities for jobs
and fuller lives.

The portion of the act that required all public businesses and
agencies to make themselves accessible to disabled people went into
effect in 1991. It mandated the construction of new ramps, elevators,
toilet stalls and several other devices whose total costs have not
been estimated but which are thought to have run into millions of
dollars.

Many employers feared that accommodating disabled employees under the
act, as required by provisions that took effect in 1992, also would be
costly. But initial reports indicate many firms have adjusted more
easily than expected. A study at Sears, Roebuck and Co. reported that
accommodating the average disabled employee cost only $121 and that 69
percent of the accommodations cost nothing at all.

But the cases of alleged discrimination that have resisted such
solutions and have led to complaints to the EEOC and court time appear
heavily weighted toward depression, back problems and other conditions
rarely mentioned when the ADA was being debated in Congress.

According to an EEOC analysis of 39,927 complaints filed under ADA
employment provisions through December, the largest portion-- 19.5
percent--concerned back problems. Another 11.4 percent involved
"emotional/psychiatric impairments," not including mental retardation.
About 3.6 percent of the complainants said they were impaired by
alcoholism or drug addiction and needed protection from employers who
wished to fire or discipline them.

Just 12.1 percent of the complaints were from people with spinal cord
injuries and other neurological problems--the conditions frequently
mentioned when ADA was being written.

This has fueled talk in Congress about amending ADA. In the meantime,
corporate and private attorneys who specialize in personnel cases say
the act threatens to force far more expensive litigation in the future
than has the issue of racial preferences in hiring, which also has
become a target of congressional action.

In July 1992, GTE Data Services in Tampa discovered that computer
programmer Joseph Hindman had been stealing money from other employees
and had brought a loaded derringer to work. When he was fired for
having the gun, he sued for reinstatement under ADA. He said he was
the victim of a mental illness aggravated by improper medication, and
thus disabled under the language of the act.

The company said irresponsibility and impulsiveness were personality
traits not covered by the act. Even if he was disabled, it said, he
posed a danger to other employees.

The first tentative court ruling was in Hindman's favor. "When poor
judgment is a symptom of a mental or psychological disorder it is
defined as an impairment that would qualify as an disability under the
ADA," the court said.

The judge's later ruling that Hindman did not have sufficient evidence
to overturn the firing did not convince the programmer. "I was never
given the opportunity to seek the medical care I needed," he told a
local reporter.

Employees with other unconventional disabilities have sought
protection from the disability law. Ouida Sue Parker received worker
compensation payments when she left her job at the Schering- Plough
pharmaceutical company in Tennessee in 1991 because of severe
depression, but she also filed for protection under ADA. A federal
judge eventually dismissed her case on the grounds that ADA protected
only those "with disabilities who can perform the essential functions
of the job that they hold or seek."

A New Orleans television anchor-woman, Lynn Gansar Zatarian, tried to
use ADA when NBC-affiliate WDSU failed to renew her contract because
she demanded extra time off to receive fertility treatments.

The court dismissed her case because, it said, getting pregnant was
not a "major life activity," such as walking or seeing. Impairments to
the latter would be covered under ADA.

A federal court did rule that a Boston woman, denied employment
because she was too fat, could seek ADA protection.

Some advocates of the act say the unexpected cases should be judged
individually: Some bad back or stress claims are likely to be
frivolous, while others will be well founded.

"Each person is an individual and has to be judged on that," said Evan
Kemp, a disability rights activist and former chairman of the EEOC.
"There is a tendency to explore the limits, and that is what is being
done now."

Several experts called to consider the impact of ADA at recent
conferences sponsored by the National Council on Disability, a federal
agency, said they were troubled by the low numbers of severely
disabled unemployed Americans who have used the act so far.

"The most disenfranchised are always the last to take advantage of
it," said Arlene Mayerson, directing attorney of the Disability Rights
Education and Defense Fund. She said many severely disabled Americans
need expensive ventilators and other equipment to stay alive, and yet
lose the federal medical benefits that pay for them if they get
full-time jobs.

Even worse, said Redenbaugh, of the Civil Rights Commission, if a
disabled person loses the medical benefits because of a job and then
loses the job, reclaiming the benefits can take as long as two years.
"Not only that," he said, "there is a presumption that since you were
working you must not be disabled at all."

National Council on Disability experts say many disabled people
probably still do not know how the ADA cold be used to gain work. A
recent Harris poll, a council report noted, indicated that only 40% of
people with disabilities had any substantial knowledge of the ADA.

Redenbaugh said his commission will launch an investigation next year
into the act's successes and failures in bringing disabled people into
the work force. "The primary purpose, which is the increased access to
jobs to people who are severely disabled, has not been realized," he
said, "and that should be a concern."

[Disabilities Act Failing to Achieve Workplace Goals, Jay Mathews,
Washington Post, April 16, 1995]

ABLEnews Editor's Note: The above article inspired the following
                        letter to the editor from Justin Dart.

April 18, 1995

The Washington Post

To the Editor:

To many people The Washington Post is the responsible voice of the
capital of democracy.  That is why I am depressed by Jay Mathews'
April 16th front page article on the Americans With Disabilities Act.
You cite some unremarkable statistics, four highly untypical lawsuits
and a few out of context statements by disability community leaders
-and then you make the Grand Canyon leap to the conclusion that the
ADA is "Failing to Achieve Workplace Goals," that it "Rarely Helps
Disabled People Seeking Jobs."

As evidence you report that "Since the employment provisions of the
ADA went into effect in 1992, more than a third of the complaints
filed with the Equal Employment Opportunity  Commission have come from
employees with back pain (19.5%), emotional problems (11.4%) and
ailments caused by alcoholism and other substance abuse (3.6%)."  You
imply that those conditions are not real disabilities, and that cases
concerning them are likely to constitute abuses of the law.  Two days
later in your excellent "Health" section, you state that "In any one
year, 50% of all working Americans have low back pain."  And you speak
of "the reality of back pain--relentless, excruciating,
all-encompassing. The kind of pain that takes your breath away and
knocks you to the floor and ruins your life."   Americans with
psychiatric disabilities probably form the largest segment of the
disability community, and suffer the most vicious discrimination.  My
mother and my brother, who suffered from depression, took their own
lives. Has anyone ever disputed that alcoholism and other substance
abuse can cause severe disabilities?

Is everyone, then, who claims a back pain, an emotional or an alcohol
problem covered by the ADA?  Of course not.  Are there abuses of the
ADA?  Are there frivolous claims and lawsuits?  Of course.  Every new
law is tested to define limits.  But even after the testing period is
over, there will still be abuses of the ADA. Democracy has never been
as simple as authoritarian regimentation or war-lord,
devil-take-the-hindmost anarchy.  The rights to freedom of speech and
freedom of enterprise are horribly abused thousands of times every
day, but I don't see the Post declaring them failures.  Are the rights
of people with disabilities of a lesser value?

You point out that 85% of people filing EEOC ADA complaints already
have jobs, "a sign that few disabled people have found the new act
very helpful."  This conclusion is bizarre.  The EEOC statistics cover
large businesses for a period of 30 months, midsize businesses for
only six months.  They do not cover people who got jobs, people who
were encouraged by ADA to train or apply for jobs, or employers who
made accommodations for people who might get jobs. For most untrained
people with severe disabilities it would take longer than the period
covered by the statistics to apply for and complete vocational
services.

Elsewhere in your article you report that only 40% of people with
disabilities have any substantial knowledge of the ADA.  How could the
other 60% possibly complain about infringement of their ADA rights?
You completely ignore the fact that people who already have jobs are
far more likely to know how to access the EEOC process than are people
who have never been employed and are applying for jobs.  You
completely ignore the facts that thousands of people with disabilities
are prevented by lack of transportation, public access and personal
assistance services from getting anywhere near a job site, and that
millions are intimidated by fear of losing poverty-based medical and
economic benefits.

Your article lacks any sense of history.  Modern science has made it
possible for millions of people to survive previously fatal conditions
and live for decades, with the absolutely proven potential to be
competitively employed, to participate fully in their communities, to
achieve lives of quality.  FDR, Bob Dole, Thomas Eagleton.  Yet this
magnificent potential remains substantially unfulfilled.  Progress is
impeded by a massive residue of the discriminatory attitudes and
practices that have, throughout all recorded history, relegated people
with disabilities to less than animal status.

Seventy percent of working age Americans with disabilities remain
unemployed.  Millions are almost totally segregated from the
mainstream of society. President Bush estimated that this costs
American families and taxpayers almost $200 billion each year.  The
human costs are incalculable.

And so in 1990 we passed the ADA.  It is a well written and researched
law.  Its definition of disability and many of its concepts are based
on 22 years of experience implementing rights conferred by the
Rehabilitation Act of 1973.  Nobody has gone bankrupt because of that
law.  There has been no explosion of abuse or litigation.  These
things will not occur because of the ADA.

The ADA is the world's first comprehensive civil rights law for people
with disabilities, a landmark in the history of human development.  My
God, can you even begin to understand what that means to me and 49
million Americans like me, to more than half of a billion of the
world's most oppressed people, to billions in future generations?
After thousands of years of rejection every waking hour of every day,
we are declared to be equal members of the human race!   By the United
States of America!

My spirit soars!   I am a certified American!  Almost every lawyer,
every teacher, every leader of government, business and the media
knows that I am an American with American rights.  Thousands of
businesses and communities are quietly undertaking to implement, at
least to avoid penalties for violating, those rights.  Every day more
average citizens become aware.  Consciously or unconsciously they
begin to adjust attitudes and actions.  I and millions are treated
differently in an infinity of subtle ways.  People with and without
disabilities have begun, just begun, to overcome fear, prejudice,
paternalism, pity, misinformation.  It will take decades, perhaps
centuries to eliminate all the attitudes that cause rejection, to
achieve full equality in employment and full participation in the
culture.  But what a grand beginning!

You choose to ignore all of this.  You choose to ignore the
fundamental nature of change in human affairs.  One hundred and thirty
years after the abolition of slavery, thirty one years after the Civil
Rights Act of 1964, African Americans still battle to overcome the
effects of discrimination.  Humans still struggle to live the Ten
Commandments, the Sermon on the Mount and the Koran.

Is it responsible media, does it meet the most elementary standards of
high school journalism, is it honest, to suggest that the ADA is a
failure because it has not accomplished in a few months what the
world's great religions and governments have been unable to do in
thousands of years?

April 16 was Easter Sunday.  Would it not have been more appropriate
for the Post to run a front page story entitled, "Christianity Failing
to Achieve Founder's Goals."?  Of course not. Humanity is making
progress.  It is measured in millenniums, not months.

Consider your responsibility!  What does it mean for the future of
humanity, for the future of your family, when the leaders of America
and the representatives of every nation read in THE WASHINGTON POST
that the ADA is not working?  Did you ever hear of the
"self-fulfilling prophecy?"

The world is watching.  Give ADA and humanity a chance.

Sincerely,
                            
Justin Dart

Former Chairman, The President's Committee on Employment of People
with Disabilities in the Bush Administration;  Former Commissioner,
the Rehabilitation Services Administration in the Reagan
Administration

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