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Disability Act Cripples Small Businesses
Washington Times, August 2, 1995 (& San Diego Union-Tribune, August 6, 1995).*

By Michael Fumento

Copyright 1996 by Michael Fumento
 

A recent Harris poll shows that 90 percent of business executives surveyed support the enforcement provisions of the Americans with Disabilities Act (ADA). Well, you know people who claim everything big business says is a lie? This time they may be onto something.

One wonders, for example, if the Coca-Cola company was polled. Two years ago, a Coca-Cola executive got drunk at a company party and threatened a co-worker. The company fired him and he sued, because under the ADA alcoholism is a disability. Coca-Cola claimed they didn't fire him over the "disability," but over the threatening behavior -- there being as yet no federal protection for such people. A jury disagreed and handed our soft drink sot over $1 million in lost wages and $6 million in punitive damages. He won't get it all, since the ADA limits punitive damages to $300,000 for big businesses, but it wasn't for want of trying.

And how about Exxon, which -- after a certain accident off the coast of Alaska -- began cracking down on employees in dangerous jobs who imbibe. The Equal Employment Opportunity Commission (EEOC), which oversees enforcement of the ADA, is suing them for it.

Yes, under the ADA, behavior which society used to condemn can now be handsomely rewarded.

Under the ADA, which took effect in 1992, businesses with 15 or more employees are forbidden from discriminating in hiring, firing, or promotions on the basis of a disability. In addition, businesses catering to the public such as theaters, stores, and restaurants must make their facilities highly accessible to disabled persons in terms of getting in, using the bathroom, and getting around.

No one yet knows how wide the definition of "disabled" will end up. It certainly is wide enough to include the obese. But to qualify you have to be really, really fat. If you just have a pot belly or thunder thighs you've got a lot of hard eating in front of you.

Traditional disabilities are far outnumbered by this new breed. According to the National Organization on Disability, which commissioned the business poll, there are 49 million disabled Americans at any one time. (And naturally it represents the wishes of all of them.) Of these, fewer than 2 percent are in wheelchairs.

Of complaints filed under the ADA, as of the end of March only 7.3% had anything to do with disabilities of the extremities such as paralysis or missing limbs. Blindness and deafness accounted for 6 percent of complaints. Back pain, conversely, made up almost a fifth of all cases while emotional and psychiatric impairments were 11.6 percent.

So much for the imagery of the Vietnam vet in a wheelchair.

No, under the ADA, we may not all get our 15 minutes of fame, but by golly we all get a grab at the brass ring of disability. Still, big business has learned to stop worrying and love the ADA, says the poll.

Don't believe it. People often tell pollsters what they think they should say rather than what they really believe. That's why polls showed California's anti-illegal immigration Proposition 187 headed for certain defeat just days before it easily passed.

Yet at least those were anonymous polls. There was nothing anonymous here. Guarantees of confidentiality notwithstanding, no CEO in his right mind would want to be listed somewhere as disapproving of an act which everybody thinks is supposed to help Stevie Wonder and Jerry's Kids.

Had Harris polled small businesses, the response might have been more straightforward. That's because a single lawsuit can hurt a small business so much more.

True, under the ADA businesses with fewer than 50 employees can lose no more than $50,000 in punitive damages. But, "the typical small business owner takes home less than $40,000 a year, so basically it means the business, the house, the car, and then some," explains Wendy Lechner of the National Federation of Independent Businesses.

Moreover, Lechner told me, "The litigation can cost more than the damages [settlement or award] and that is what frightens" small businesses. For a company like Coca Cola a few hundred thousand dollars in litigation costs doesn't amount to cola beans. For Charlie Chan's Chinese takeout, it means their goose could be cooked even if they win.

The public access section of the ADA also slams small businesses particularly hard. An article in the current issue of Reason magazine by Brian Doherty details the nightmare odyssey of a Denver restaurant owner who ended up needlessly paying over $100,000 in construction costs and fees to make his business comply.

Fines aside, small business owners are terrified of bad publicity. Lechner spoke of a Tennessee woman who rented space for her business in a local mall. A local activist group demanded she make her store more accessible to wheelchairs and she agreed but added that by contract she needed to wait until the mall owner arrived back in the country. Not good enough. Soon the story of this heartless businesswoman was everywhere. "She feels she may not recover for years because it was all over the papers," says Lechner.

If our congressional representatives were to conduct an informal poll of some of their own small-business owning constituents, they'd probably hear something a lot different than what millionaire chief executives told the Harris people. They'd probably hear that the ADA needs to be scrapped--or at least severely disabled.

*appeared as "Disabling fallout of disability regulations," Washington Times, August 2, 1995, and "Is it time to reform the Americans with Disabilities Act? Rulings terrorize small business," San Diego Union-Tribune, August 6, 1995.


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