This morning’s news featured a piece about ADA based attacks on workshops for the disabled (Morning Edition, National Public Radio). What’s bad about a special facility where those with intellectual and other severe disabilities can earn some money? According to the DOJ and supposed disabilities advocates it keeps the disabled from getting “real” jobs that pay at least the minimum wage. What’s the solution? Kick the disabled out of the sheltered workshops and see if they can make it in the real world, where many will not be able to find any work at all. It is worth noting, of course, that any disabled person always has the option of looking for conventional employment — none of the workshops involved compulsion. But because the DOJ and a small group of supposed advocates don’t like the way these programs serve the disabled the programs will be reduced in scope if not shut down entirely.
Also this morning yet another report on abusive ADA litigation in California, whose “reform” of the Unruh Act (California’s version of the ADA) did not even create a speed bump in the race to profit by using litigation to hold up small businesses. Woody Guthrie’s observation that some men rob you with a six-gun and some with a fountain pen sums up the private litigation environment for many small businesses. In the blogosphere a prominent ADA advocate who was formerly with the DOJ is advertising a seminar about how to avoid a “pounding from the DOJ.” The DOJ itself has announced the limit on civil penalties in DOJ enforcement actions is going up by thousands of dollars. The seminar is valuable because the threat to business is real.
And so the Department of Justice and so-called disability advocates have made those with disabilities an object of fear. No business can afford to regard a person in a wheelchair or a person with a service dog as another valuable customer or employee. In today’s litigation climate the only prudent way to deal with a disabled person is as a threat. The law that was intended to allow those with disabilities to live ordinary lives to the greatest extent their disabilities allowed has instead been used to create exactly the kind of stigma the ADA was supposed to eliminate. And this isn’t just true for businesses that are in it for the money. ADA “advocates” have sued homeless shelters and threatened the American Red Cross, while the DOJ attacks cities whose programs for those with disabilities don’t match the DOJ’s interpretation of what the ADA requires.
The ADA has certainly lead to improvements in physical accessibility and employment for the disabled, but that has come at the cost of creating an atmosphere of fear in which businesses have dozens or hundreds of pages of policies for dealing with the disabled and every employee must be trained to understand that one false move when confronted by a person with a disability is likely to lead to a lawsuit. The goal of the ADA was to eliminate discrimination, but that goal has been completely subverted by the actions of the DOJ and others who use the ADA to promote discrimination in the name of disability rights. While businesses may be upset at the costs they incur for ADA lawsuits, the real victims are those with disabilities who cannot have ordinary casual business interactions because of the pervasive threat of legal action, and who cannot take advantage of special programs because those programs supposedly cause discrimination.
The ADA must be reformed. First, it should be amended to occupy the entire field of disability discrimination and therefore pre-empt all similar state statutes. That will eliminate the absurd statutory penalties that give rise to abusive litigation in California and other states. It would also eliminate the multitude of standards that businesses must deal with when trying to create access for the disabled. Second, the ADA should require, as a prerequisite to filing suit, the filing of an administrative complaint with the DOJ and mandatory mediation of that complaint. The DOJ already has a voluntary mediation program. Making it mandatory would allow most ADA complaints to be solved without the legal expenses associated with litigation. Finally, the ADA should be amended as necessary to limit the power of the DOJ to promulgate regulations that create rather than reduce discrimination. This would only be a start, but unless the ADA is reformed it will continue to be used by DOJ and private litigants to advance a disabilities rights agenda that creates an atmosphere in which the disabled are more feared than respected.