© 1999  Karen Selick
Don’t Import This Bad U.S. Law
An edited version of this article first appeared in the January, 1999 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


Don’t Import This Bad U.S. Law

If ever there were a group deserving of sympathy, the physically disabled would be it.  In May, 1996, the Ontario legislature gave an example of humankind’s widespread desire to help them by passing a unanimous resolution supporting the creation of an "Ontarians with Disabilities Act". 

Late last year, the Harris government finally introduced legislation bearing that name.   However, it turns out that what the government had in mind was a far cry from what disabled activists had in mind.   The bill merely requires every ministry of the provincial government to prepare a plan to identify, remove and prevent barriers encountered by disabled people who have dealings with that ministry.  No remedies are required, no penalties are attached, and no employers or enterprises outside the provincial government are affected.

In my view, that’s a good thing.  The shortsighted economic thinking and flawed moral arguments that prompted the 1996 resolution, if put into practice in the manner demanded by disabled activists, would probably end up harming everyone, the disabled above all.

The legislation being sought by activists would require not only government agencies but also the private sector to "remove barriers" that restrict disabled people’s access to jobs, consumer products, tourism, housing, etc.  Among other things, this would entail installing ramps or elevators in virtually all buildings except owner-occupied homes, and forcing employers to hire or retain employees who are physically or mentally ill, even if their illness endangers others or affects their ability to perform their duties.

Ontario already has legislation something like this.  The Human Rights Code outlaws discrimination in the provision of goods, services, housing and employment on the ground of handicap. I oppose the Code because it actually violates human rights (particularly freedom of contract and private property rights), instead of guaranteeing them. 

But bad as the Code already is, disabled activists want worse.  They’re not satisfied with resolving alleged incidents of discrimination case by case.  They want to impose a positive duty on all businesses to make changes now, whether or not any disabled person has ever had any dealings with a particular business, and whether or not the costs outweigh the benefits.  They also want a whole new government agency with massive funding and power to coerce businesses into compliance.

The United States passed similar legislation—the Americans with Disabilities Act (ADA)—in 1990, unleashing a flood of bizarre litigation.  Here are some examples.

A 410-pound applicant for the job of subway train conductor was too fat to fit in the conductor’s booth.  He sued the New York City Transit Authority, claiming that it could have accommodated him by altering the design of its trains.  Lose weight?  No way.

A Florida judge facing dismissal for shoplifting claimed ADA protection because he was "depressed" over his daughter’s failure to gain admission to law school and his son’s poor grades.

A New York hospital switched an HIV-positive pharmacist from preparing patients’ intravenous solutions into a different job, at the same pay, with less risk of communicating his infection.  He sued under the ADA and received $330,000 in damages for emotional harm.

A dentist fired for fondling his patients claimed his sexual urges were a disability entitling him to ADA protection.

A man fired for bringing a gun to work claimed that he, too, was disabled--his actions were caused by a "nervous disorder."

An warehouse employee caught falsifying security records claimed that his impulses to engage in wrongdoing were a disability that protected him from firing.

The ADA has forced banks to install braille instructions on drive-through automatic teller machines—on the driver’s side. And it has forced a strip club to make its stage accessible to potential wheelchair-bound strippers.

Has the ADA fulfilled its promise of helping disabled Americans enter the workplace?  Probably not.  In fact, it may have made employers less likely than before to give disabled workers the chance to prove themselves.  Failure to hire won’t  necessarily trigger an ADA complaint; there may have been many good reasons why other applicants were preferred.  However, hiring and then firing if the disabled worker performs inadequately will almost certainly trigger an ADA lawsuit.  Why take the chance?

The National Organization on Disabilities, a private U.S. group, reported that by 1994, four years after implementation of the ADA, the proportion of working-aged disabled persons who were employed had declined by 2 percentage points from 1986, before the ADA was even passed. The main beneficiaries of any additional work opportunities created by the ADA seem to have been lawyers.

Disabled activists claim the high moral ground.  This legislation should be enacted because it’s right, they insist.  It’s not fair that some people are handicapped.  Something should be done to "level the playing field."

It’s an argument that tugs at the heart.  However, most disabled people are disabled due to sheer bad luck, not because they’ve been victimized by other people.   While it may be cathartic to rail against the unfairness of fate, chance is not something that’s within the realm of morality.  Morality has meaning only in the context of human action.  It’s about what human beings do to one another and what they should do in future.

Deliberately harming people who are entirely innocent of any wrongdoing is—surely--morally wrong.  But this is what the proposed disability legislation would do.  It would impose financial burdens on innocent victims—building and business owners.  This is tantamount to retroactively enslaving them for the portion of their lives they spent working to acquire the funds they’ll be forced to spend.  Such injustices are not made right by the fact that some good might come of it, some day, for some disabled stranger.

This law is one U.S. import we can definitely do without. 

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June 20, 2000