August 24, 2006

Disabling America

[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.

May 2, 2006

Disabilities Law Protects Bad Doctors

[Originally appeared in the New York Times, November 28, 1997]

It was the patients' screams that finally did it. Officials at Hazleton-St. Joseph Medical Center in Pennsylvania investigated Frank Ruhl Peterson and found the anesthesiologist had been stealing narcotics from surgical intravenous bags to feed his own habit. Dozens of patients had been shortchanged of anesthesia prescribed for procedures that included Caesarean sections, biopsies and spinal surgery.

Dr. Peterson, a longtime addict with a record of arrests on charges that included drug possession and kidnapping, was sentenced in February and served a short prison term.

Most of us assume someone is keeping an eye on doctors with backgrounds of drug addiction, alcoholism or serious mental illness. In fact, thanks to the Americans With Disabilities Act, which Congress passed in 1990, these conditions have become legally protected handicaps, and medical boards are being stymied in their efforts to monitor or even identify doctors with histories of drug abuse.

Boards seldom deny licenses to applicants who disclose past psychiatric or substance-abuse problems. Still, most boards would like to have enough information so they can decide for themselves how serious the problems are and then be on the lookout for signs of recurrences.

The civil rights division of the Justice Department has made this very difficult, however, and in some cases impossible. It has ruled it a violation of the disabilities law to question would-be doctors broadly about their histories of alcoholism, drug abuse or mental illness. Such inquiries would cause doctors to be unfairly "singled out because of their disabilities," says the Justice Department, and would impose on them "additional burdens of investigation."

In other words, such questioning would infringe on their right not to be scrutinized more closely than doctors who have been sober or sane all along.

Instead, the Justice Department recommends that doctors be asked questions like, "Do you currently suffer any mental disorder which impairs your ability to practice medicine?" But this overlooks the obvious fact that someone suffering from mental illness is not always in the best position to make such judgments.

Advocates for the disabled further advise licensing boards to rely on nebulous "behavioral" indicators. Such indicators include references from previous employers, though these are often not made available for fear of inviting lawsuits; records of absenteeism, though these may fail to explain why the applicant missed a month of work (a skiing accident or a visit to a drug rehabilitation center?); and criminal convictions, though that will not help in the case of someone arrested repeatedly but not convicted, as seems to have been the case with Dr. Peterson.

The danger of relying on behavioral clues alone is demonstrated by the case of a Texas doctor that was a centerpiece of an investigative report published in The New York Times in 1994. Dr. Garry E. Winn showed symptoms of diminished mental capacity, seizures and "physical disabilities related to a stroke," as The Times reported, in addition to high alcohol consumption, but did not face a malpractice complaint until he miscalculated a dose of medication, inflicting severe brain damage on a previously healthy patient.

Nor did Dr. Winn's uneasy colleagues move to revoke his hospital privileges: they said they were afraid he would sue.

Fortunately, the disabilities law does not protect what it terms "current" illegal drug use. In a landmark suit brought in 1993, the New Jersey Board of Medical Examiners was permitted to go back two years in asking applicants about their illegal drug use.

But two years is hardly long enough. When Dr. Peterson applied for his license, Pennsylvania officials asked about drug use in the previous five years -- very conveniently for him, since he had just passed the fifth anniversary of his entry into a rehabilitation program.

Even five years is a relatively short time. According to Congressional testimony, a significant number of doctors relapse even after five years of reported sobriety; relapse rates in the first five years range as range as high as 50 percent.

No wonder Dr. Ray Bumgarner of the Federation of State Medical Boards warned, in testimony last May before the House Judiciary Committee, that his member boards "cannot adequately protect the public" under the Americans With Disabilities Act as currently interpreted. Doctors with "extensive impairment histories" are bound to slip through, he added, "without evaluation and monitoring."

As Dr. Peterson's patients, crying out from their beds, must have wondered: isn't anyone out there listening?

January 3, 2006

Under the ADA, We May All Be Disabled

[Originally published in the Wall Street Journal, "Rule of Law" column, May 17, 1999]

To understand the latest controversy concerning the Americans With Disabilities Act, the word to keep in mind is "unmitigated."

Karen Sutton and Kimberly Hinton want to be classed as legally disabled on account of their poor eyesight. There's just one catch: it seems the two sisters can see pretty much as well as the rest of us. Ah, their lawyers say, but that's when they're wearing glasses! Ditch the specs, and they're badly nearsighted. Last month, the Supreme Court heard arguments on whether the physical condition of persons wishing to sue under the ADA should be considered in its "unmitigated" state, that is, before any remedial steps have been taken.

The issue has plenty of applications. A second case before the court involves a United Parcel Service driver who wishes to qualify as "disabled" because he'd have a serious problem with high blood pressure if he stopped taking his medication -- though in fact he does take it. Also watching with interest are people who'd be in medical trouble if not for their joint or heart-valve replacements.

In other realms of life we seldom rely on an "unmitigated" definition of disability. For example, if you're applying for disability-benefit checks, it's a bad idea to tell the claims processor that you want the income even though you're perfectly capable of holding down a job and performing common tasks provided you keep your glasses on or take your pills.

Then there's the question of where the concept of remediation stops. For those with impaired mobility or blood-sugar imbalance, prescribed exercise and nutrition may make the difference in avoiding a downward course. Are they entitled to legal rights based on the disability they'd suffer if they started defying doctors' orders? At the extreme, perhaps we should allow persons whose lives have been saved by their medications to exercise their right to ignore mitigation and instead hold themselves out as legally dead.

To be fair, the tangle of disability-definition gets a lot more complicated than this. Economist Carolyn Weaver says the government has used more than 20 different definitions of disability for various purposes. And the ADA's is among the vaguest of all.

At the Supreme Court last month, you might say the theme was unmitigated confusion. "I don't see how to get this statute to work," said Justice Stephen Breyer. "I'm at sea," confessed Justice David Souter. As Justice Antonin Scalia waved his glasses in the air -- seven of the nine Justices wear glasses -- the court seemed to realize in one magic moment that under the more liberal interpretations of the ADA every one of them could count as protected-class members as could "a majority of Americans," as Justice Scalia said. That's a result at odds with the law's preamble, which cited 43 million as the number regarded as disabled then.

By this point, to be sure, it would seem late in the day to stop the majestic progress of disabled-rights law from bestowing a right to accommodation on everyone who differs physically, mentally, or behaviorally from the norm. Last year the Hartford Courant reported that nearly one in three high schoolers in affluent Greenwich, Conn., are now officially regarded as disabled, entitling them to various benefits ranging from individualized tutoring to laptop computers. Soon we may achieve a Lake-Wobegon effect in reverse, in which we will all get to be below average.

Unmitigated gall is more the style of a new study that claims that the ADA is actually unfairly tilted toward business defendants. Hyped by its sponsor, the American Bar Association's disability-rights commission, the study purportedly found employers winning 92% of ADA lawsuits and almost as high a share of Equal Employment Opportunity Commission proceedings; it got uncritical coverage from the Associated Press, USA Today and CNN.

Of course a different way to interpret the same numbers would be as indicating that 92% of ADA cases are shown unmeritorious. But in fact the numbers mean nothing at all because of the absurd way they were compiled. The summary judgment stage is often crucial in ADA disputes, and cases won by management at this stage were duly entered into the ABA database. And cases that went the other way? Well, um, it happened they were left out, except for the small minority of instances where the employer insisted on litigating to the end.

If the Associated Press or CNN had checked with some leading plaintiff's-side ADA authorities -- never mind the defense -- they might have gotten an earful about the defects of this study. Gary Phelan, co-author of a leading treatise on the ADA and a plaintiff's attorney who's handled more than 300 cases under the law, told the Connecticut Law Tribune that the ABA survey's exclusion of settled cases made it "not only misleading" but "flat out wrong." "Generally, around the country, ADA cases that have gone to trial have done very well," he told the paper. Peggy Mastroianni, ADA specialist at the EEOC, said the ABA report "overstates by far" employers' success at her agency.

Still, the ABA's efforts did divert attention from some other statistics less popular among disabled-rights advocates. Hardly anyone has been rude enough to mention, for example, that the rate of workforce participation among the disabled, which everyone expected would rise under the new law, has instead plunged to 29% from 33% in 1986. Also little-cited has been the report in the Dec. 24, 1997 Journal of the American Medical Association (JAMA) offering statistical support for the plausible notion that workers with sensory impairments get into more than their share of industrial accidents.

In both the new mitigation cases, employers are fighting back based on fears for traveler safety -- not because of some sort of dislike of handicapped persons.

The two sisters are suing because they've been turned down for jobs as pilots at United Air Lines. United declines to weaken its standard for pilots of 20/100 uncorrected vision or better, perhaps because it has considered the tendency of eyeglasses to smash or go flying in runway mishaps or conditions of extreme turbulence. Meanwhile, UPS declines to give the man with partially controlled hypertension a driving job because of the well-established correlation of that malady with traffic risks. (According to the Dallas Morning News, plaintiff Vaughn Murphy avoids taking the full dosage needed to keep his blood pressure down to normal because doing so makes him "stutter or forget things.")

The word, once again, is "unmitigated," as in "unmitigated disaster."

November 22, 2005

Time to Get Off the Tenure Track

Published New York Times, July 8, 1997

Last month The Florida Times-Union of Jacksonville reported on the case of a local teacher who officials said had gotten into repeated book-throwing brawls with her students. In rambling letters, the teacher told the authorities that evil spirits had invaded her students' eyes; later she changed her last name to "God."

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