Memorandum Date: April 2, 1993 To: Senator Dole From: Alec Vachon Re: Newsclips/Title I (Employment) of ADA (End of Letterhead) ADA's employment section became effective July 26, 1992, for businesses with more than 25 employees. Three related newsclips: 1. New York Times (3/20/93): News article --EEOC won first lawsuit on March 18. Also apparently first under Civil Rights Act of 1991, which allows limited punitive damages in employment discrimination cases (not provided in ADA). Comment: According to an earlier press report, Charles Wessel, complainant, knew about ADA because he was in charge of his company's compliance before fired. 2. Wall Street Journal (3/15/93): Op-ed complains about ambi­guity of ADA and regs. So far, no Letters in response. Comment: Perception issue. Yes, laws & regs are confusing, but not fault of ADA but inherent to variability of disability and workplace accommodations. Considering size of U.S. labor force, few Title I complaints expected. According to EEOC: a. from July 1992 to March 1993, about 5,500 people have file employment discrimination complaints. 37 filed by Kansans. Most filed by Texans (637); least by Vermonters (1). b. EEOC expects 15-18,000 complaints by end of first year. c. ADA covers, however, 77 million people (66% of labor force). 3. Wall Street Journal (3/31/93): News article about "screwy" ADA complaints. Comment: Perhaps unintentionally, makes some good points: (1) broad legislation such as ADA always full of surprises; (2) if Congress wants to retain policy control (vs. courts or Administration), will have to consider amending law. cc: D. Stanley The New York Times, March 20, 1993 (Saturday), p. 7. Man Dismissed Over Cancer Wins Judgment (End of Headline) CHICAGO, March 19 (AP) -In the first test of a Federal law barring job discrimination against the disabled, a court awarded more than $200,000 on Thursday to an executive dismissed after his company had learned he had terminal brain cancer. The company, AIC Securities, was sued by the Equal Employment Offortunity Commission on Nov. 5 under the Americans with Disabilities Act, which took effect July 26. The commission said the owner of the company, Ruth Vrdolyak, told Charles Wessel, 59, to resign as executive director in the summer when she learned of the diagnosis. The jury in Federal District Court ordered Mrs. Vrdolyak to pay Mr. Wessel $500,000 in punitive damages, $50,000 in compensatory damages and $22,000 in back pay. But the law, which limits the amount of damages in such cases, required the judge to reduce the total Mr. Wessel will get to $222,000. The verdict is "a bittersweet victory for Chuck Wessel, since he is still ill, and a terrific victory for the disabled," said Allison Nichol, a lawyer for the Equal Employment Opportunity Commission. The Americans with Disabilities Act prohibits employers from firing, refusing to hire or otherwise discriminating against people because of disabilities as long as they can do the work. The Wall Street Journal Monday, March 15, 1993 Whoever Wrote ADA Regs Never Ran a Business (End of Headline) A businessman in Maryland recently sought the advice of an attorney at my firm because his place of business appeared to be inaccessible to the handicapped. After hearing a recital of the many new obligations imposed by the Americans with Disabilities Act (ADA) - including both the access and the employment requirements - the shocked businessman candidly told the attorney that he had no intention of complying with all of that. He reasoned that it would be simpler and cheaper in the long run to wait and see if anyone sued. If he was sued, he would make changes then. Even then, he figured he would be ahead. All over the U.S., businesses have spent millions of dollars to send their managers to seminars and speeches to learn how to comply with the ADA. But instead of receiving enlightenment, those managers often return to their businesses with their heads spinning. Troubled by the cost of compliance, and confused over the scope of the new edicts, many of those affected by the law have made a business decision to wait to be sued, rather than to comply voluntarily. These people have not suddenly chosen to become outlaws. Their problem is that the law is so complicated and unclear that the only way they can know exactly what it requires of them is to be told by a judge. Indeed, the ADA is so confusing that it may be unteachable to the millions of managers who are most affected by it. Case precedents may not be helpful in clearing up the confusion, either. My firm is representing a business in the first enforcement case brought by the Justice Department under the access provisions of the ADA. Our client is a business that ran a professional licensure exam review course and offered a hearing-impaired student a verbatim transcript of the course. The student had demanded a sign-language interpreter instead. In discussions with the business, the Justice Department took the position that whether the accommodation was adequate should be judged solely by the disabled person. In its suit, the Justice Department has sought civil penalties of as much as $50,000, as well as "damages" for the student. There are only a handful of employment laws that affect the vast majority of employers in the U.S. Most of those laws are fairly plain - you cannot discriminate based on sex, age, race, and the like; you must pay minimum wage and overtime when required. This is hardly the case with the ADA. The list of required reading to understand the ADA is daunting even to experienced attorneys and ensures that virtually no lay employer can ever fully come to grips with the law - let alone fully comply with it. The problems only begin with the definition of "disability," which casts so wide a net that it includes even allergies and learning problems. And because disabilities are self-identified by the employee under the ADA, that means that the accommodations required of the employer are also defined by the employee. Once an employee identifies himself or herself as having a "disability," there are virtually no limits to what accommodations can be demanded. In the Americans with Disabilities Act Manual, the employment provisions of the ADA occupy only about four pages. However, the commentary on those same provisions requires hundreds upon hundreds of pages, including the legislative history of the law, the Equal Employment Opportunity Commission's rules, joint procedural regulations of the EEOC and other agencies, EEOC policy statements, the Justice Department's rules and preamble, the EEOC's Technical Assistance Manual, the Justice Department Technical Assistance Manual, the IRS policy statement on disability-related tax provisions applicable to businesses, and the EEOC's and the Justice Department's question-and-answer brochure for employers. So, any employer who thinks that he or she can get away with just studying the text of the law itself must beware. To make matters worse, the government's so-called Technical Assistance Manuals are so technical that they are of little assistance to employers, although they may prove to be of great help to employees who sue. Consider, for example, the problem of screening applicants who are addicted to illegal drugs. On the face of it, illegal drug abusers are not protected under the ADA. Don't take too much comfort in that, though - past drug abuse is considered a "disability" within the protection of the ADA. To add to the confusion, current addiction to legal drugs or alcohol is also protected under the ADA. What all this means is that an employer can ask an applicant about present illegal drug abuse, but not about present legal drug or alcohol abuse, or past abuse of any substance, legal or illegal. Just try to explain that to your personnel managers! And how far in the past is considered "past" drug abuse? The EEOC's Technical Assistance Manual gives no guidance as to whether that means two weeks, six weeks or six months. And what about, say, law enforcement officers, for whom a drug-free history is consistent with business necessity? The Technical Assistance Manual makes clear that "even in this case, exclusion of a person with a history of illegal drug use might not be justified automatically as a business necessity" under some circumstances. What this illustrates is that the EEOC requires a case-by-case analysis of each employee's particular circumstances, giving virutally no predictability to employers, who are left to rely upon the courts to sort through each ADA problem. The law and the commentary are even more bizarre when they address what the employer can and cannot say to an applicant with a disability. No matter how profound the disability is, the employer is barred from initiating any discussion about it before making a conditional job offer. The employer may not ask anything at all about the nature, severity or prognosis of the condition, including its duration. The ADA's framers and commentators -- many of whom no doubt never hired anyone in their lives -- have gagged you, the hiring manager, into sitting mutely before an obviously disabled applicant, allowing you only to ask whether the applicant can perform the essential functions of the job, and what if any accommodations are required. If the answers are not candid or forthcoming, you cannot ask any follow-up questions, but must drop the entire subject like the legal hot potato that it has become. Never before was there such a regulation of free speech -- let alone of justifiable curiosity -- imposed by the government upon such a large group. Even more confusing is the fact that the ADA does not prohibit a physical exam after an offer of employment is made. And there is little restriction upon what questions can be asked at the physical. That means that the same questions that the employer could not ask at the 10 a.m. interviews may be perfectly legal after the 1 p.m. job offer and the 2 p.m. physical exam. While it is not clear yet what effect the ADA has had in nurturing access and employment opportunities for those who are truly disabled, it is clear that all of the confusion generated by the law has nurtured a legion of lawyers and consultants. The ADA, with its imprecision and its standardless case-by-case rules, may prove to be one of the grandest and most expensive attempts yet at government micromanagement of business. Ms. Janofsky, a trial attorney in Baltimore, has handled a wide variety of employment matters. The Wall Street Journal Wednesday, March 31, 1993 Page B1, B4 Disabilities Act is Being Invoked in Diverse Cases and in Many Unexpected Contexts (End of Headline) By Edward Felsenthal, staff reporter of the Wall Street Journal The new federal disabilities act isn't just about disabilities anymore. Plaintiffs' lawyers are seeing to that, as they take advantage of the vague wording of the Americans with Disabilities Act to apply it in a wide range of surprising contexts. Congress passed the ADA in 1990 to bar discrimination against disabled people in public accommodations and in the workplace. But since the act took effect last year, dozens of cases have been filed over issues that many lawmakers never imagined when they voted for it. Such lawsuits include a lawyer's attempt to ban smoking at McDonald's Corp. restaurants, efforts by workers injured on the job to win damages for discrimination, and a claim that the disability of "depression" mitigates criminal behavior. "There are going to be some successful screwy claims out there that Congress never intended," says Dewey Poteet, a discrimination-law specialist at the law firm Akin, Gump, Strauss, Hauer & Feld in San Antonio. "I don't think [Congress] had a real handle on the extent to which laws are stretched out of proportion." To be sure, most ADA claims filed so far are ordinary kinds of disability cases, such as disputes over an employer's decision to fire a worker who is blind or mentally ill. And since October, the number of claims against employers has averaged about 1,000 a month, below what some critics of the law had expected. But the possibility still exists that judges will interpret the law broadly and open the door to a wider range of suits, given Congress's failure to provide clear guidance as to the law's limitations. Indeed, the language of the ADA may make it particularly prone to judicial tugs and pulls. For example, the law requires employers to make "reasonable accommodations" for a worker's disability -- but only if those accommodations aren't an "undue hardship" on the employer. "The statutory language is just incredibly broad and very ambiguous," says Robert Christenson, a labor lawyer with the firm Fisher & Phillips in Atlanta. "It's difficult to tell exactly what they mean." Connecticut lawyer Robert Farr contends the ADA is broad enough to prohibit smoking at restaurants, and he has filed lawsuits seeking a smoking ban at a unit of Wendy's International Inc., McDonalds and Burger King Corp., a unit of Grand Metropolitan PLC. By allowing smoking, Mr. Farr says, the fast-food chains discriminate against people with respiratory ailments because smoking aggravates their breathing problems, forcing them to eat elsewhere. Mr. Farr makes no secret that antismoking zeal rather than concern for the disabled triggered his initial interest in the ADA. As a Connecticut state representative, he tried unsuccessfully to win legislation banning restaurant smoking. "It's very hard to get legislative bodies to act," he complains. Then along came the ADA. Mr. Farr investigated the new law and discovered it might be "a means to an end of eliminating smoking," he says. The American Lung Association put him in touch with three mothers of children with asthma, he says, and he filed the claims on their behalf. Mr. Farr also represents a woman with lupus, Linda Ravenell, who objects that she is forced to take her kids through McDonald's takeout window and feed them in the car because of smoke in the building. "I believe McDonald's is denying me access to the restaurant," Ms. Ravenell says in her ADA claim. The ADA has spawned other unexpected progeny. Many ADA claims, for example, have been filed by employees who were injured while working. In most states, worker's compensation claims are supposed to be the only remedy for on-the-job injuries. But an injured worker now may be able to collect damages under the ADA as well, if the boss won't transfer the employee to a job that accommodates the injury. "Injured workers are going to be the single biggest beneficiaries of the ADA, and I don't think Congress thought about that," says Christopher Bell, a disabilities-law specialist at the law firm Jackson, Lewis, Schnitzler & Krupman in Washington. A former lawyer with the Equal Employment Opportunity Commission, Mr. Bell helped develop the agency's ADA regulations. Another case pushes the envelope even further. Olan Rand Jr., a former Northwestern University professor, contends the school violated the ADA when it fired him for committing a crime. The 61-year-old art history teacher pleaded guilty in 1991 to collecting his mother's Social Security checks for five years after she died. But Mr. Rand asserts that a disability -- "severe depression and procrastination behavior" -- led him to delay notifying the government of his mother's death, according to Marshall Dickler, a lawyer for Professor Rand. Some of the ADA's supporters aren't concerned about cases that appear to stretch the law beyond its original scope. The courts can sort out a legitimate claim from one that "diverts the intent of the law," says Steve Bartlett, the mayor of Dallas who as a U.S. congressman helped draft the ADA. But courts sometimes aid efforts to expand vaguely written laws. The federal Civil Rights Act of 1964 makes no mention of sexual harassment, but lawyers have successfully argued that the act encompasses it. Lawyers say companies will have to defend themselves against seemingly frivolous ADA cases because the act requires claims to be judged individually. In each case, the disabled plaintiff's hardships must be balanced against the difficulty a defendant faces in accommodating the disability. Thus, a plaintiff might write even a weak case filed against a company that can inexpensively make the accommodations. A company sued in such a case "can't just say, 'Oh, that's ridiculous,' and not look at it," says Mr. Bell.