Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, May 31, 1990 TAG: 9005310479
SECTION: EDITORIAL PAGE: A-15 EDITION: METRO
SOURCE: RAY L. GARLAND
DATELINE: LENGTH: Medium
There is, in fact, no effective conservative opposition left in the Congress. The bills that are passing to provide fresh impetus to the American welfare state are sailing through with strong Republican support and hardly a glancing blow from Bush.
The last time the chickens came home to roost, in the stagflation of 1978-82, intelligent people had a pretty good idea of whom to blame. Next time, that won't be true. Both parties are in on it, with Republicans seeing damage control as their only contribution.
In the Americans With Disabilities Act, which recently passed the House 403-20, virtually all physical and mental impairments to which humankind is heir were defined as disabilities. The professional proponents of the bill said it would protect 43 million "disabled" Americans. That's probably wildly inaccurate, but a pretty good guide as to what they had in mind.
The bill is a model of vague generalities, which is fast becoming standard operating procedure. Stating your good intentions with wild abandon, and leaving it to the courts to clean up the mess is now an acceptable standard of congressional draftsmanship.
The bill defines a disabled person as anyone with an impairment that "substantially limits one or more of the major life activities." At a minimum, it covers those who suffer from infectious diseases, such as AIDS, mental illness, alcoholism and past drug abuse.
Only by a vote of 199-187 was language adopted allowing a restaurant operator to transfer a person with AIDS from his job as a waiter to another assignment. And the bill as drafted will apply in four years to concerns with as few as 15 employees.
Is kleptomania - the obsessive impulse to steal - a mental illness? If so, could a policeperson diagnosed as a kleptomaniac be discharged? Could an alcoholic be fired from his job as skipper of the Exxon Valdez?
While we complain of the plague of lawyers, this legislation creates a possibly bottomless pit of litigation. Much of it will be frivolous, malicious or unscrupulous. Who will pay?
Then there's the Civil Rights Act of 1990 making its way toward the president's desk. An employer who is sued will have the burden of proving that any "disparate impact" of his hiring practices can be explained by a "substantial and demonstrable relationship to effective job performance." The bill, lacking clear definitions of what constitutes job discrimination, is content to rely upon the courts to interpret intent. No wonder Congress seeks to exempt itself from the law.
What it boils down to is a desire to legalize employment quotas for women and minorities that were thrown out by a recent Supreme Court decision. That is, the employment roll of any business which does not reflect a reasonable percentage of women and minorities in all job categories would be suspect, and could be the subject of litigation.
Nor is it the responsibility of the litigants to prove that a deliberate policy of discrimination has taken place. The burden is on the employer to prove that any deviation from a statistical norm does not constitute discrimination. Litigants are to be guaranteed jury trials, and can be awarded punitive damages.
How and when they will get them is another matter. According to the Administrative Office of U.S. Courts, only 5 percent of the 238,140 federal cases classified as ended in 1988 ever reached trial. The scope of possible litigation inherent in only the Americans With Disabilities Act and the Civil Rights Act of 1990 are so immense that it's hard to see how a doubling of the federal judiciary would be more than a drop in the proverbial bucket.
The practical effect of some of this stuff might be seen in the HUD regulations recently published to implement the 1988 Fair Housing Law, which mandated that all multifamily housing built in this country must be accessible to the handicapped. Even proponents of the legislation were shocked to discover how much it would cost, and some are now protesting the regulations.
The executive director of the Paralyzed Veterans of America says that enforcement of the HUD regs in their present form would add between $1,300 and $3,700 to the cost of a walk-up apartment, and from $3,200 to $4,300 for a high-rise unit.
Let us, by all means, be the most treated, most schooled and most sensitive people in the poorhouse. We will be poor and at each other's throats, but it will feel so good.
by CNB