Is anyone left who is not disabled under the law?
Ebenezer Scrooge probably wouldn’t like the
Americans With Disabilities Act, though even he came around in the end. Like
almost everyone else, I’m all for providing ramps, elevators, Braille signage,
enlarged bathroom stalls and plenty of simpler accommodations for people with
disabilities so they have an opportunity to be productive citizens and
participate in as many social and recreational activities as possible.
This commentary isn’t about picking on people who are wheelchair bound or
sensory deprived. The issue that inspires the headline above is who exactly
qualifies as disabled? Or, put another way, is there anyone left who can be
described as “abled”?
Scarcely so, it seems, after reading about recent changes to the ADA described
in a May 1, 2009, edition of The Construction Law Briefing Paper put out by the
Minneapolis law firm of Fabyanske, Westra, Hart & Thomson (FWHT)
(www.fwhtlaw.com). Under the ADA Amendments Act of 2008, “the term ‘disability’
is to be interpreted broadly and in favor of finding coverage under the ADA,” wrote the FWHT
authors (their boldface emphasis). That legislation was intended to enlarge
coverage under ADA by overriding some U.S. Supreme Court cases that limited
Prior to these amendments, “only” about one in six or one in seven Americans
qualified as disabled, depending on which advocacy group did the counting. Yet
even those advocates’ estimates were low-balled compared with our nanny state
Census Bureau, which counts one in five Americans as disabled in some manner.
All of them agree that the number is bound to go up due to our aging
Sheesh. Look around you. Do one out of every five, six or seven people you
encounter at home, in the workplace or transporting their supposedly enfeebled
bodies and minds around your neighborhood look disabled to you?
Looks can be deceiving and I confess to not knowing exactly how many of us
genuinely ought to fall under the ADA umbrella. I suppose you’d have to count
everyone who needs a wheelchair or walker to get around, plus everyone with one
or more of the five senses missing or greatly diminished, plus folks whose
mental deficiencies prevent them from living without assistance, and also
include disease-ridden people who show no outward symptoms. Take another look
around. Outside of a hospital or nursing home, does that still come to 15-20
percent of the population? The only way the numbers could possibly add up is if
we expand the definition of disabled to encompass everyone with the sniffles or
According to the FWHT assessment, “One of the major changes under the
Amendments Act is that a person’s impairment must now be judged in its
unmitigated state, i.e., without regard to the beneficial effects of any
corrective measures (except for ‘ordinary eyeglasses or contact lenses’) that
person uses … For example, prior to the Amendments Act, a person whose diabetes
was controlled by either diet or medication was not considered disabled under
the ADA. Now, regardless of the level of control of the impairment, that person
is considered disabled under the ADA.”
Let’s follow that logic - even if you no longer suffer from a disability, your
employer still must provide accommodations because … well, it’s not exactly
clear why. But I have a theory.
It’s because we’ve become a nation of wimps. The most powerful lobby in our
country is the victimization movement, which holds that nobody under any
circumstances ought to endure the slightest insult, inconvenience or
discomfort, and if anyone does, someone else has to pay.
That someone else usually boils down to business owners. The construction
lawyers noted in their briefing: “With the Amendments Act, future litigation
will likely no longer focus on whether the individual is disabled under the ADA. Instead, the issues
will be whether an accommodation is reasonable and whether particular accommodations
would constitute an undue hardship on the business.” In other words, the burden
of proof shifts from the individual asserting ADA rights to the business that
must spend money to provide accommodations.
The amendments were passed with strong support from both parties and signed
into law by compassionately conservative former President George W. Bush. So
there is nothing partisan about the victimization movement and resultant nanny
state. But before you get too infatuated with Nanny Sam, remember what Thomas
Jefferson said: “A government big enough to give you everything you want is
strong enough to take everything you have.”
A Nation Of Wimps
July 1, 2009