NB: This was considered, praised, but not accepted for a Mises daily article.
1. The ADA was designed to take away the ability of entrepreneurs to discriminate between normal and disabled employees during interviews and the hiring process.
The idea was that managers will start hiring at random, sometimes getting healthy people and other times, disabled ones.
2. When a hired person reveals itself to be disabled in the course of his work and in addition also unproductive, costing the company more than he is worth, the law demands that he not be fired.
3. The law also demands that potentially disabled customers be “accommodated” regardless of the cost to the business.
To be sure, willed blindness and coerced expenditures make companies and the economy as a whole less efficient. They destroy marginal entrepreneurs for whom the extra costs mean that they have no choice but to close their companies. But does it lead to more disabled people working?
Some people’s disabilities are obvious and visible; others are concealed. Suppose that a disabled person successfully evades being detected during the interview and gets hired. His poor performance (he comes in late, he can’t concentrate because of his medications, he is mean to his colleagues, whatever) soon becomes manifest. Indeed, a “disabled” person by this term’s very definition is unable to provide for himself, either at all or adequately. At the very least, his productivity is comparatively low, and he is worth little to business firms. But where is the fine line between “incompetent because of character flaws or stupidity” and “incompetent because of ‘genuine’ disability”?
The employer still has a right (thanks goodness) to fire a person for not performing but not for disability. What happens if a worker both is disabled and sucks at his job? That is a gray area, where the majority of lawsuits happen. Usually, a threat of a lawsuit is sufficient to get the employer reluctantly to agree to keep a loss-causing worker on his payroll.
There is also a semantic point to be made. “Working” is supposed to yield happiness for both the hired man and the entrepreneur. But for the latter, a worker is an expensive factor of production. The disabled incompetent worker costs the employer more than he is worth. In one sense, the person is “working” and doing something useful; and in another, he is wasting scarce resources. But let’s agree that coercion could keep a few extra disabled employees on welfare at their bosses’ expense.
So much for this consequence. But what about those disabled persons whose disability is harder to hide during the interview process? Maybe the applicant is in a wheelchair. The employer is now wary of hiring the disabled. Why should he expose himself to losses and lawsuits? Instead of being a possibly inexpensive asset, the disabled person becomes a clear liability. It is much more defensible in a court of law to fail to hire a disabled person in the first place than to fire such a person down the line when he proves to be a bad employee. So, the disabled guy goes home and waits for a call that never comes.
Moreover, it may pay an employer actively to take steps to discover potentially disabled people in order not to hire them by accident. Thus, on the one hand, the ADA law explicitly exempts illegal drug users from claiming to be disabled. On the other hand, it may well be the case that disabled people tend to use narcotics more, even if their disability stems from unrelated reasons. The link is that disability may be physically painful in itself and in addition lead to spiritual depression which people may seek to alleviate with all kinds of drugs. Hence the sharp rise in the frequency of drug tests, certainly otherwise pointless, costly, intrusive, and humiliating procedures. I remember being drug tested after already working for over a year for a company and not even as a full-time employee but as an independent computer consultant! I submit that this test would not have happened, if it had not been for the ADA.
Employment of these people declines due to the ADA. Empirically, the second effect outweighs the first, such that businesses suffer losses, customers endure bad service and defective products (made by incompetent employees), and genuinely disabled people become outcasts in polite society, unable to integrate themselves in social cooperation at all. Everyone loses, no one gains, except the idealistic fools to whom this law seems “compassionate.”
Even the first type of employees who end up leeching off the entrepreneurs who are afraid to fire them feel pretty soon the general contempt in the workplace. Everyone will treat them like dirt, because why not, when they don’t earn their keep? Besides, maybe the poor treatment will give them an incentive to quit.
Then there is the matter of disabled customers who must be “accommodated.” This coercion is so obviously uneconomic and un-utilitarian, paying no attention to business costs and revenues that the reason for it must be sought elsewhere. Perhaps, the moral high ground is captured as follows: “We are a merciful society, ready the sacrifice the greater happiness of everyone for the sake even of smaller happiness of the poor and pitiable disabled. This sacrifice measures our love for our fellow men.” Unfortunately, the business owners are not trusted to express their own love but are forced by the “merciful” to hurt both themselves and their customers. Underneath it is just Marxist tripe about greedy and exploitative capitalists. In any case, “love or go to jail” does not seem very loving in itself.
Moreover, “love” is not properly expressed by singling out a few people like business owners and putting the onus of supporting, as if by charity, some group entirely on them. It would be far more fair for everyone to contribute in taxes the money needed to pay for outfitting every business with the right “accommodations.” If “society” claims it is so eager to sacrifice its own happiness, then let it put its money where its mouth is, rather than ordering businessmen around. It will not do to object that since every business is subject to these regulations, the group that ultimately bears the burden is the consumers, i.e., everyone. This is because, in addition to making domestic business as a whole less efficient and America less prosperous, the law affects each company differently. This distorts the market. The ADA is not a market-neutral legislation. For example, small business is harmed more than big business. A head tax, say, to support the disabled is still fairer than the ADA.
For some reason, personal property like one’s own house is exempt from the need to accommodate the disabled. Suppose you have a couple of crippled friends. You’d like them to attend a party you are throwing. However, there is no ramp, and they can’t get in. Surely, it is up to you and your own calculations to determine whether installing the ramp is worth it or not. But business firms calculate, as well, except they do it in strict monetary terms rather than psychic terms. The distinction in the legal code between “commercial” and “private” (or personal) property is untenable; it’s a distinction without a difference. It is not the job of the state to read a businessman’s mind and decide whether the reason for his actions is legitimate or not. As you are in full control of your house, so a businessman must be in full control of his enterprise. Only then will every member of society be justly treated.
In short, the ADA diminishes human happiness, produces results opposite those it aims to achieve, is socialistic, and unjust. It must be immediately repealed.
Dmitry Chernikov is the author of Summa Against the Keynesians: A Treatise on Economics.
You've actually got a pretty decent draft here. I can easily see the parts that kept it from being published. I'm confident that with a bit of revision it could be worked up to Mises Daiy style and standards. I'd be happy to offer my suggestions if you're interested.
John, I appreciate your offer of help. I think the "sucks" ought to go :)... I'd like to hear your suggestions.
PM