Court blunders on ADA

June 27, 1999|By Ellen Goodman

BOSTON -- This morning, I am once again among the temporarily abled. I have achieved this enviable state as I do each day, by inserting one lens into my right eye and the other into my left.

The world is now in focus. I can go about my daily business, drive to work, write this column and read a newspaper.

Let me say that the phrase "temporarily abled" has long made me grit my teeth. The term suggests that the permanent human condition is disabled. It trivializes the great divide.

Nevertheless, the phrase comes to my mind every time I see a young person hobbling around in a cast or an older person in a wheelchair. And today with my lenses in place, I can see clearly to wonder if the Supreme Court hasn't become completely myopic.

In a trio of cases last week, the court limited the reach of the Americans With Disabilities Act beyond recognition.

Nine years ago, Congress made it illegal to discriminate against "a qualified individual with a disability." A disability was defined as an impairment that "substantially limits one or more of the major life activities."

But last Tuesday the court ruled that the bill wasn't meant to cover people with impairments that can be corrected. Conditions such as diabetes, high blood pressure and even poor eyesight.

That sounds like plain old common sense -- until you see what it means in practice.

Consider the case of the twin sisters who want to fly for United. The airline refused to hire pilots without perfect uncorrected vision. The twins didn't see clearly enough for United. But now, in the eyes of the court, they see too clearly to be covered by the ADA.

The other two cases involved a man who was fired from UPS because he had high blood pressure-- though his medication controlled it -- and a truck driver fired because he was blind in one eye -- although his other eye compensated for it. Both men were denied work because they were physically impaired. And now they are denied protection because the impairment was corrected.

As Georgetown University's Chai Feldblum, who helped write the original ADA, says with profound frustration, "in the end, a person can be disabled enough to be fired from a job, but not disabled enough to challenge the firing."

The ADA has long had what we might call an image problem. When we think of disability, we think of wheelchairs, guide dogs and sign language. We don't think of high blood pressure, cancer or diabetes, let alone bad eyesight.

But the point of the law was to protect people from irrational discrimination on the basis of their physical condition. It was to help those who can do the job anyway.

This doesn't mean that an employer should be required to hire every disabled person. The operative word here is "qualified." But until this decision, the ADA was a warning that employers needed a reason beyond whimsy and prejudice for refusing to hire and for firing workers with a physical condition.

Ironies, absurdities and Catch-22s litter this ruling. As Justice Stevens wrote in his dissent, "Since the purpose of the ADA is to dismantle the employment barriers based on society's accumulated myths and fears, it is especially ironic to deny protection for persons with substantially limited impairment that when corrected render them fully able and employable."

Let's go back for a moment to the four-eyed pilots. Why couldn't twins with contact lenses be hired for the job? I don't want the captain of my 747 to lose a contact at 35,000 feet, but the airline already allows pilots on the roster to keep flying after they get glasses.

One of the reasons for the court's near-sightedness is a fear that, in Justice Stevens' words, "a generous rather than a miserly" interpretation of the law would mean an explosion of cases. In Justice O'Connor's ruling, the court stated the anxiety that 150 million people could be covered. Lawsuits Unlimited.

But let us remember that the law against gender discrimination also protects men. And the law against racial discrimination is also used by whites.

Civil rights are supposed to be universal. The ADA was written for all of us. In the workplace, it said that we're supposed to be judged on just one ability -- the ability to do the job. From now on, we're all just temps.

Ellen Goodman is a syndicated columnist.

Pub Date: 6/27/99

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