Imagine that someone organized a lobby of the dissipated, the intemperate, reprobates, and similar miscreants unable or unwilling to behave themselves. Those who cherish civil society would, correctly, hold it in contempt. It would be laughed off the stage. Who wants a country where anything goes and where no one is punished for disruptive or dangerous self-indulgence? But a crusade to normalize such behavior is gaining ground. It is a disorganized, leaderless movement, but nevertheless very real. Its goal: the gradual transformation of “disability” from a serious physical condition such as blindness into sacrosanct victimhood for personal failings.
Put historically, what was often a sin became a medical condition, which has now evolved into a personal disability that requires government protection. This the town drunk was once punished for moral depravity, then enrolled in a medical anti-alcoholism program, but now benefits from government protection for this “disability.” From sinner to victim in a few centuries.
This gradual transformation accelerated in 1990 with the passage of the Americans with Disabilities Act. Its purpose was laudable: “Physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination; others who have a record of a disability or are regarded as having a disability also have been subjected to discrimination” [Americans with Disabilities Act of 1990, As Amended, ADA.gov].
ADA is a broad act covering “discrimination against individuals with disabilities [that] persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services.” Its definition of “discrimination” is explicitly sweeping, and amendments have only further expanded coverage. Thus 2008 amendment stated that “the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.”
The catalog of possible disabilities now covered by government protection is staggering. One compilation includes digestive, neurological, musculoskeletal, and cardiovascular conditions, as well disorders of “special-sense organs” [List of Disabilities Covered Under ADA, UpCounsel.com, September 7, 2021]. As for drug addiction, the definition is circular. An addict could be someone who
Moreover, ADA-information websites offer links to lawyers who specialize in ADA claims—what Overlawyered’s Walter Olson called ”ADA filing mills.” Just type in your zip code to find nearby law firms that might represent you. No wonder such claims are a million-dollar class-action lawsuit industry—no matter how far-fetched.
Lawsuits have asserted that the websites of some businesses fail to accommodate the visually impaired, while a restaurant in San Francisco, Hon’s Wun-Tun House, was sued because their dining tables were not wheelchair-accessible despite being closed for sit-down service. Only takeout was available.
ADA claims can be subtle, too. United Airlines was forced to settle for more than $1 million when some disabled employees claimed that the airline did not sufficiently help them apply for vacant positions [United Airlines to Pay over $1 Million To Settle EEOC Disability Lawsuit, EEOC.gov, June 11, 2015].
And even if the employee’s claim fails, the tedious legal battle can be costly.
Not surprisingly, today’s college campuses are hotbeds of disability claims for mental illness and learning disorders. To avoid litigation, classes are rescheduled, absences are ready excused, extra time is given for assignments. Bloated student health centers abound [The Problem With Disabling, by Colleen Eren, Discourse, July 13, 2023].
Compassion has become a quest for a utopia in which no one suffers regardless of their conditions—even if self-inflicted, invisible to the eye, or dangerous to others.
Here is how one website advised employers to address alcoholic employees:
Alcohol use disorder is an impairment, and if it substantially limits a major life activity. … it will constitute a disability. A person with alcohol use disorder may be a person with a disability and protected by the ADA if they are qualified to perform the essential functions of the job.
[Are people with alcohol use disorder protected by the ADA?, ADA National Network]
Keep in mind that ADA exists with innumerable laws also prohibiting race, sexual orientation, age, and sex-based discrimination, all of which are often a ticket to huge riches with a skilled lawyer.
The ADA has also spawned numerous state and local laws that likewise ban “discrimination” for behavior that, once upon a time, risked not only moral opprobrium but also prison time.
Thus some 33 states and 150 cities and counties now have “ban the box” laws that forbid employers asking about prior criminal records [‘Ban the Box’ Turns 20: What Employers Need to Know, by Roy Maurer, SHRM.org, November 2018]. New York City and several states are or are about to ban “weight discrimination” in the workplace [The Hidden Career Cost of Being Overweight, by Ray A. Smith, WSJ, July 24, 2023].
That litigation threat is not hypothetical. A 400-pound California man, who claimed he was fired because of his weight, was awarded more than $1 million after he claimed that his obesity was a physiological disorder and thus protected by the state’s ADA-like Fair Employment and Housing Act [Can Employers Discriminate on Appearance? Lookism Law 101, by Aaron Hall, AaronHall.com].
Outlandish hairstyles might also be protected. Last year, the U.S. House passed the Crown Act, which the Biden Regime, of course, supports [Statement of Administration Policy, WhiteHouse.gov, March 15, 2022].
The Creating a Respectful and Open World for Natural Hair Act…
prohibits discrimination based on a person’s hair texture or hairstyle if that style or texture is commonly associated with a particular race or national origin. Specifically, the bill prohibits this type of discrimination against those participating in federally assisted programs, housing programs, public accommodations, and employment.
(So far, Senate Republicans have blocked the bill—Senate Republicans Block Passage Of Crown Act, WatsonColeman.House.gov, December 14, 2022.)
Such is “discrimination” law these days that an employer likely can’t discrimination-proof the workplace against future costly “unfairness.” A prudent employer might hire a perfectly normal job applicant, but this employee might get fat to the point of being immobile, acquire a drug habit, become a violent nutcase, and otherwise be disruptive. Yet, by law, such an employee and his problems must be accommodated lest he file a complaint. And even then, some bureaucrat could rule the company’s accommodation insufficient and thus bring a cash settlement,
Can employers defend themselves where everyone potentially can claim “a disability” that exempts them ignoring the rules? One option is automation. Another is to ship work overseas to escape litigation at home. Or just avoid jobseekers from litigation-prone groups and instead locate in areas where employees disdain discrimination claims. Why else would Japanese and German car companies favor the rural South?
But lacking these options, one obvious solution is to hire employees who want to avoid contact with the government despite the lure of a million-dollar settlement. Foremost in this last category are immigrants, especially illegals, who prize employment over uncovering some new-found disability.
Juan, who supports his Mexican family with construction jobs, won’t likely file charges if an employer demands that he trim his hair or lose weight. But this is not so with American blacks, a group that is prone to sue no matter how ridiculous the claim.
It is no wonder, then, that the U.S. may be losing its economic edge in the world economy by attempting to create a discrimination-free utopia. Instead, America has become a world-class inventor of forms of “discrimination”—and the innovation is hardly slowing.
An inclusiveness sans boundaries. But has it occurred to anyone that society, by definition, requires boundaries?
Robert Weissberg [email him] is Professor of Political Science, Emeritus, University of Illinois, Urbana and formerly Adjunct Professor of Politics (Graduate), New York University. He is author of Bad Students, Not Bad Schools (for Steve Sailer’s review, click here). His Unz.com archive is here; his American Thinker archive here.