[Originally appeared in National Review, May 5, 1997]
You may think I'm making this up unless I offer a verbatim quote, so here's exactly what the Washington Post reported in a front-page story on April 8: "In January, a former truck driver for Ryder Systems, Inc., won a $ 5.5-million jury verdict after claiming, under the ADA [Americans with Disabilities Act], that Ryder unfairly removed him from his position after he suffered an epileptic seizure, saying his health condition could be a safety hazard. During the time he was blocked from his job at Ryder, the driver was hired by another firm, had a seizure behind the wheel and crashed into a tree. Ryder is appealing the verdict."
That's one of many emerging cases where the right to sue employers under new civil-rights laws "may be on a collision course" with public safety, according to Post reporter Kirstin Downey Grimsley. For instance, the Clinton Administration's Equal Employment Opportunity Commission has filed an ADA suit against United Parcel Service over its policy of employing only drivers with sight in both eyes. The Department of Transportation forbids one-eyed drivers from operating big rigs; UPS applies the same policy to drivers of its delivery trucks. The EEOC says such a rule is unlawful and is demanding that the company fork over back pay.
Years of litigation by advocacy groups and freelance employment lawyers have put customers, co-workers, and the general public alike at risk: -- Physically incapable, mentally unstable, and alcoholic or addicted employees have again and again used new laws to hold onto safety-sensitive positions. The Massachusetts Supreme Court ruled that a Boston police recruit had the right to lie on his job application to conceal a record of repeated hospitalizations as a psychiatric in-patient. Ship's officers have won suits against oil companies for the right to command vessels despite serious boozing pasts; Northwest Airlines rehired a pilot who had flown passengers while drunk.
-- Contagious disease carries protected status too. UCLA hospital officials knew a heart surgeon was infected with the serious and highly transmissible hepatitis-B virus; he went on to spread the virus to 18 patients. "The hospital's decision to allow the surgeon to keep on operating even after he was found to be infected," it was explained, was "in compliance with federal regulations." Prominent disabled-rights advocate and former Ted Kennedy staffer Laurence Gostin has declared that, "seen through the lens of the ADA, public-health regulation may be regarded as discrimination against people with disabilities."
-- Workers' inability to read safety warnings or comprehend verbal instructions has led to accidents on the job, yet employers are under legal pressure not to turn away workers on the grounds that their proficiency in English is poor. One manual warns employers that if they want to stay on the law's safe side they shouldn't demand more English proficiency than they're prepared to prove is necessary to fill a particular position: "Sometimes only a very rudimentary vocabulary -- 'stop,' 'don't,' 'look out,' etc. -- is all that is needed to perform a job."
The reaction in progressive circles? "Advocates for the disabled," reports Kirstin Downey Grimsley, say that "even if there is an increased risk, society must accept it as the price of creating a fairer workplace for the disabled." "We can't live in a risk-free world," said Chai Feldblum, a law professor and American Civil Liberties Union activist who helped draft the ADA. Pretty ironic, since in other contexts it's thought suitable to demand punitive damages from a business that tolerated even the slightest elevation of an injury risk -- by serving coffee at any temperature above tepid, for instance.
Invariably, backers of the new laws cite language that seems to let employers take safety concerns into account. But in practice, employers act on such exceptions only at dire legal risk.
Thus the ADA allows employers to refuse a job to persons who would "pose a direct threat to the health or safety of other individuals in the workplace." In a famous case, GTE tried to fire a computer team leader who had stolen thousands of dollars from his colleagues' desks and purses and had brought a loaded gun to the Tampa office. He sued, claiming his actions had arisen from a "chemical imbalance" that GTE was obliged to accommodate. Federal judge Elizabeth Kovachevich allowed his suit to proceed.
Feminist litigators have applied similar paralysis-by-analysis tactics in order to eviscerate strength tests for prospective firefighters, police, and other public-safety officers. Strength testing is rife with "disparate impact" because inherent physiological differences between the sexes are so profound: in Chicago's 1985 fire exam, the highest-ranking woman placed 1,200th among 7,500 applicants. Upper-body strength, important for such tasks as lifting hoses and smashing down doors, shows an especially wide gap: the fittest one-fifth of women roughly match the strength of the least fit one-fifth of men.
Seldom is it declared openly that the goal is to end testing; the problem is said to be that the particular test in question is insufficiently "validated." That's how advocates can get courts to second-guess tests to death, as in Brunet v. Columbus (1986). The city of Columbus had put would-be firefighters through a series of tests simulating typical fire-scene tasks, most dramatically a rescue in which applicants were asked to carry a 125-pound sandbag along a twisting course. When the case reached court, federal judge Joseph Kinneary accepted the plaintiffs' contention that it was unfair for the city to count off points against recruits who chose to drag the sandbag instead of carrying it. After all, the lawyers pointed out, in smoky rooms firefighters sometimes find it safer to drag bodies to safety. The implication was that the city should be indifferent between recruits who could use only one of the two rescue techniques and those who could use both -- leaving Columbus residents to hope, next time they needed help, that the hazard in their particular room was smoke rather than glass or burning fluid on the floor. (At least they're better off than residents of San Francisco, which formerly asked recruits to carry a 150-pound sack up a flight of stairs, but now lets them drag a 40-pounder across a smooth floor.)
Judge Kinneary also disallowed the city's practice of awarding credit for speed in accomplishing the dummy rescue or other simulated tasks such as hoisting equipment to upper floors (men tended to finish the tasks more quickly than women). Why? Well, Kinneary wrote, again accepting the arguments of plaintiffs' lawyers, testimony had been given that "sometimes firefighters work all-out, and sometimes they pace themselves; it depends on the task at hand." In other words, they hurry only sometimes, and other times save their energy because they expect to need it later. From this the judge concluded that all applicants who made it through the tasks at all deserved equal ranking. The case for preferring recruits who could work quickly was merely, he said, "anecdotal." Yes, you read that right. It seems people have picked up this anecdotal idea that firefighters should do their job fast, maybe because they've heard anecdotally that fires left undoused tend to spread. Many press accounts adopted the same high-minded agnosticism about exactly what it takes to fight fires. City officials defending tests say "speed is critical" in combating blazes, reported the New York Times, in the best tradition of we-print-all-viewpoints journalism. "Opponents argue that it is not."
Police have fared no better. Subduing suspects by force is part of a police officer's job, but the Ninth Circuit declared it improper for Los Angeles to test police recruits for agility. In 1986 the New York Police Department agreed to drop its pre-employment physical for recruits, under threat of lawsuits. Within a few years, more than one in five city cops were considered out of shape; some hires, according to an expose in New York, fell in "the almost inconceivably unfit first percentile" -- that is to say, "worse than 99 per cent of others their age and gender."
Age-discrimination law, which now forbids automatic retirement at 65 in most lines of work, adds another risk dimension. When former Sen. Howard Metzenbaum (D., Ohio) blocked efforts in Congress to retain a retirement exemption for public-safety workers, Frederick Nesbitt, who heads the 200,000-member International Association of Fire Fighters, warned that elderly fire and rescue workers would more often be incapacitated at critical moments: extending age-bias law into this area, he said, would "result in the injury or death of innocent people."
The crusade against strength tests is immensely popular in the law schools, where it's seen as a shining example of what feminist law can do. And yet despite two decades of activism, the actual number of women firefighters remains low, an estimated 2 per cent nationally. Many wash out of training when they learn the physical demands of the job, or go on disability later. But what may be most corrosive about the courts' hostility to strength tests is that it keeps services from upholding standards among men: if they can drag the 40-pound dummy, they're in. Call it a pro-child policy, since only tots are guaranteed a capable rescuer.
Now the ADA is making things much worse. Nesbitt suggested in congressional testimony that the combination of the ADA and new bans on test "norming" is likely to make designing meaningful fitness tests "extraordinarily difficult and perhaps impossible." He added, "To date, EEOC has been unable to identify valid tests that will meet these criteria."
Not all women are happy about the assumptions made by the courts and the lawyers who presume to speak for women. "You have to ask yourself, if it was your child or your mother, who do you want to go and get her down the ladder?" asked Lauren Howard, for years the only woman on the Chicago fire department. "Do you want somebody big, incredibly strong, extremely fast, or someone who is average?"
Let's hope the life of someone we love never depends on the answer to that question.