When the government passed the ADA, the Americans with Disabilities Act, in 1990, most people thought the new laws would protect people with physical disabilities from employment discrimination. The good intentions of some have gone bad on the many:
Disability is defined by the ADA as “a physical or mental impairment that substantially limits a major life activity.” The determination of whether any particular condition is considered a disability is made on a case by case basis. Certain specific conditions are excluded as disabilities, such as current substance abuse and visual impairment which is correctable by prescription lenses.
Ronald Reagan was trapped by similar language when he signed California’s law outlawing abortion in 1968. It included exceptions based on “health.” He was assured that the “health exceptions” were physical exceptions like the endangerment of the mother during childbirth which almost never happens. This exception created a hole in the law big enough to drive a truck through. As a 1976 presidential candidate, Reagan said of his signing the California abortion bill, “I wouldn’t make the same mistake again” and added that he did “more soul searching and studying on the subject than anything else in my eight years” as governor.
The “original intent” of the the ADA was to create civil rights protections for people with permanent disabilities. Critics of the ADA believed the law was made purposefully vague so that it could be expanded at will. Of course, this is true of all laws. On signing the measure, to calm the fears of critics, Pres. George H. W. Bush said:
I know there may have been concerns that the ADA may be too vague or too costly, or may lead endlessly to litigation. But I want to reassure you right now that my administration and the United States Congress have carefully crafted this Act. We’ve all been determined to ensure that it gives flexibility, particularly in terms of the timetable of implementation; and we’ve been committed to containing the costs that may be incurred…. Let the shameful wall of exclusion finally come tumbling down.
Now we learn that the definition of “disability” has expanded beyond what its original framers ever could have imagined. The EEOC, the Equal Employment Opportunity Commission, is attempting to give a new meaning to “mental impairment.”
A letter from the EEOC is warning employers that requiring a high school diploma from a job applicant might violate the Americans with Disabilities Act. “The ‘informal discussion letter’ from the EEOC said an employer’s requirement of a high school diploma, long a standard criterion for screening potential employees, must be ‘job-related for the position in question and consistent with business necessity.’”
A “learning disability” — based on the “D” in ADA — may now be covered under the law. So some 9th-grade dropout who applies for a job and doesn’t get it because he doesn’t have a high school diploma or a GED could sue the company because of his claim that the reason he didn’t graduate from high school was due to a learning disability.
Do you know how nuts this is? It doesn’t stop at high school. What if a graduate from high school is denied entry into the college of his choice because of his grades? He counters that his low grades were the result of a learning disability. What if he flunks out of college? Could he file a claim with the EEOC and argue that he was discriminated against because of his learning disability?
One of the companies that I run was contacted by the EEOC. The person who filed the claim wanted money. The EEOC pressured my company to pay out more than $40,000. Of course, the government agency would have taken less, say, $26,000. Most companies pay because they count the cost of legal fees to fight it. We fought it and won. Other companies are not as fortunate.
Remember the comment that Pres. Bush made when he signed the bill: “I know there may have been concerns that the ADA may be too vague or too costly, or may lead endlessly to litigation.”
As reported in Human Resource Executive, a recent ruling by U.S. district Judge Sean Cox ordered the EEOC “to reimburse Cincinnati-based uniform supplier Cintas Corp. more than $2.6 million in attorneys’ fees and legal costs after the company prevailed in an 11-year-old employment-discrimination case.” The ruling “criticized the EEOC for its ‘sue first, ask questions later’ strategy.”
I’m of the opinion that a high school diploma or college degree is not always necessary for employment, but it’s not the government’s job to say so.