A troubling bill for business - Americans with Disabilities Act of 1989

Nation's Business, May, 1990 by Bradford A. McKee

Small-business owners fear that vague provisions of the disabilities measure in Congress will prove costly.

Small-business owners say they feel threatened and confused by the demands they expect will be made of them if the Americans with Disabilities Act becomes law. The problem, business lobbyists say, is that the well-intentioned bill is too vague and open to interpretation. They say that even its built-in protections would amount to a poor defense for smaller firms hit with costly lawsuits.

The disabilities legislation was introduced in 1989 by Sen. Tom Harkin, D-Iowa, and then-Rep. Tony Coelho, D-Calif. They said it was designed to make sure that the 43 million disabled Americans would not be subjected to discrimination in employment, transportation, communications, public access, and other spheres of life.

The legislation would prohibit an employer with 15 or more workers from citing disability as a reason for not hiring a disabled applicant who could perform the "essential functions" of a job. An employer also would have to make "reasonable accommodations" to employ the disabled if doing so would not cause the employer "undue hardship." The determination of "undue hardship," according to the legislation, would be based on a company's size, facilities, and budget.

All businesses, regardless of size, would have to make sure that public facilities were accessible to the disabled. They would have to remove structural barriers and communications obstacles if the changes were "readily achievable." A firm with public facilities, such as drinking fountains, bathrooms, telephones, or parking spaces, would have to make them available for disabled patrons if it could not show that making such accommodations would pose undue hardship.

Ray Stanage, owner of Stanage Transportation Inc., in Hot Springs, Ark., says hiring disabled workers for some jobs would be no trouble for his company, but, like many business people, he expresses fears about the bill's "reasonable accommodations" clause. He says that if that clause would require him, for example, to equip his 28 trucks so that they could be driven by paraplegics, it would be a "very impractical and cost-prohibitive adjustment."

Those who support the measure say that such concerns arise from misinformation about how the law would be applied. Nonetheless, many business owners remain uncertain about the measure's possible impact.

In Huntington, W.Va., theater owner Derek Hyman wonders how he would hire workers in wheelchairs for jobs in projection booths or behind concession stands--the places, he says, where the equipment is "designed for someone who can stand up."

Stephen Elmont, president of Creative Gourmets Ltd., a catering and food-service company in Boston, says 4 percent of his workers are disabled, and their jobs are limited by safety considerations. He wants to know how far the legislation would require him to go in accommodating a disabled employee. For example, Elmont says, would he have to lower a 3-foot-high deep fat fryer so that a worker in a wheelchair could operate it? If the fryer were lowered to 18 inches, say, it would be useless to most workers and a "fire hazard" to the disabled, says Elmont. He says a busy kitchen is "just not safe" for a person in a wheelchair.

The legislation's "essential functions" clause is another major worry for business groups. Susan R. Meisinger, a government-affairs lawyer for the Society for Human Resource Management, a lobbying group for businesses, in Alexandria, Va., says this wording would take away employers' rights to define a job's critical tasks. She also says the measure, if enacted, would raise more legal issues than it would resolve. Business groups want the disabilities bill to state explicitly that when a dispute arises, the employer must be permitted to express an opinion on the "essential functions" of the job at issue. "You've got to rely on the employer's judgment," she says.

Much of the bill's qualifying language was borrowed from sections 503 and 504 of the Vocational Rehabilitation Act of 1973, which prohibits discrimination by recipients of federal funds. Proponents of the bill added terms such as "readily achievable" after business groups asked for clearer definitions. Still, business leaders don't feel safe. "I don't think you can define everything to the last degree," says Hyman, "but if you don't define the terms, you leave businesses hanging out in the wind. There's no way they can protect themselves."

The bill is built for flexibility and doesn't need additional or more specific protective language, says Justin W. Dart Jr., chairman of the President's Committee on Employment of People with Disabilities. "It's my understanding of the American justice system that employers would always be free to provide their input" in a dispute, he says. "Having been an entrepreneur, my experience with government regulation is that we have always complained about these laws that try to tell the business person what he or she has to do in a certain way. We used to pray for laws that call for common sense."