Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, April 17, 1995 TAG: 9504170078
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: METRO
SOURCE: JAY MATTHEWS THE WASHINGTON POST
DATELINE: WASHINGTON LENGTH: Long
The landmark civil rights act designed five years ago to open the job market to severely disabled Americans instead has brought a flood of bad-back and psychological-stress cases - a result sharply at odds with what the framers of the law intended.
Since the employment provisions of the Americans With Disabilities Act went into effect in 1992, more than a third of the complaints filed with the Equal Employment Opportunity Commission have come from employees with back pain, emotional problems and ailments caused by alcoholism and other substance abuse.
No more than 6 percent of those complaining have impaired vision or hearing. About 12 percent have neurological impairments. The vast majority of the cases - at least 85 percent - involve people who already have jobs, a sign that few disabled people seeking work have found the new act very helpful.
``The goal of increasing employment opportunities for those of us who are seriously disabled has not been met at all,'' said Russell Redenbaugh, a Philadelphia-based member of the U.S. Commission on Civil Rights, who is blind. ``I believe that there are a vast number of people with disabilities who want to work, can work and only need the most modest of accommodations.''
``There are certainly some frivolous charges being filed,'' said Christopher G. Bell, a Washington attorney specializing in disability cases.
Michael Auberger, national organizer of American Disabled for Attendant Programs Today, agreed that ``there are a lot of cases filed that aren't people with disabilities.''
When it was signed in 1990, the ADA was hailed as one of the great bipartisan civil rights laws of the century: It guaranteed that disabled people would have access to buildings, streets and transportation facilities, and increased the opportunities for jobs and fuller lives.
The portion of the act that required all public businesses and agencies to make themselves accessible to disabled people went into effect in 1991. It mandated the construction of ramps, elevators, toilet stalls and several other devices whose total costs have not been estimated but which are thought to have run into millions of dollars.
Many employers feared that accommodating disabled employees under the act, as required by provisions that took effect in 1992, also would be costly. But initial reports indicate many firms have adjusted more easily than expected. A study at Sears, Roebuck and Co. reported that accommodating the average disabled employee cost only $121 and that 69 percent of the accommodations cost nothing at all.
But the cases of alleged discrimination that have resisted such solutions and have led to complaints to the EEOC and court time appear heavily weighted toward depression, back problems and other conditions rarely mentioned when the ADA was being debated in Congress.
According to an EEOC analysis of 39,927 complaints filed under ADA employment provisions through December, the largest portion - 19.5 percent - concerned back problems. Another 11.4 percent involved ``emotional/psychiatric impairments,'' not including mental retardation. About 3.6 percent of the complainants said they were impaired by alcoholism or drug addiction and needed protection from employers who wished to fire or discipline them.
Just 12.1 percent of the complaints were from people with spinal cord injuries and other neurological problems - the conditions frequently mentioned when ADA was being written.
This has fueled talk in Congress about amending ADA. In the meantime, corporate and private attorneys who specialize in personnel cases say the act threatens to force far more expensive litigation in the future than has the issue of racial preferences in hiring, which also has become a target of congressional action.
In July 1992, GTE Data Services in Tampa discovered that computer programmer Joseph Hindman had been stealing money from other employees and had brought a loaded derringer to work. When he was fired for having the gun, he sued for reinstatement under ADA. He said he was the victim of a mental illness aggravated by improper medication, and thus disabled under the language of the act.
The company said irresponsibility and impulsiveness were personality traits not covered by the act. Even if he were disabled, it said, he posed a danger to other employees.
The first tentative court ruling was in Hindman's favor. ``When poor judgment is a symptom of a mental or psychological disorder, it is defined as an impairment that would qualify as an disability under the ADA,'' the court said.
The judge's later ruling that Hindman did not have sufficient evidence to overturn the firing did not convince the programmer. ``I was never given the opportunity to seek the medical care I needed,'' he told a local reporter.
Employees with unconventional disabilities who have sought protection from the disability law include Ouida Sue Parker. She received workers compensation payments when she left her job at the Schering-Plough pharmaceutical company in Tennessee in 1991 because of severe depression, but she also filed for protection under ADA. A federal judge eventually dismissed her case on the grounds that ADA protected only those ``with disabilities who can perform the essential functions of the job that they hold or seek.''
A New Orleans television anchorwoman, Lynn Gansar Zatarian, tried to use ADA when NBC-affiliate WDSU failed to renew her contract because she demanded extra time off to receive fertility treatments. The court dismissed her case because, it said, getting pregnant was not a ``major life activity,'' such as walking or seeing. Impairments to the latter would be covered under ADA.
A federal court did rule that a Boston woman, denied employment because she was too fat, could seek ADA protection.
Some advocates of the act say the unexpected cases should be judged individually: Some bad back or stress claims are likely to be frivolous, while others will be well founded.
``Each person is an individual and has to be judged on that,'' said Evan Kemp, a disability rights activist and former chairman of the EEOC. ``There is a tendency to explore the limits, and that is what is being done now.''
Several experts called to consider the impact of ADA at recent conferences sponsored by the National Council on Disability said they were troubled by the low numbers of severely disabled unemployed Americans who have used the act.
``The most disenfranchised are always the last to take advantage of it,'' said Arlene Mayerson of the Disability Rights Education and Defense Fund.
by CNB