Some shortsighted employers don't give jobs to people with disabilities, even when the disabled could do the work. Politicians thought the way to stop this discrimination was to make it illegal. That's what politicians tend to do. But in the real world, even Congress can't wish problems away. Their well-intended solutions create nasty unintended consequences. The Americans with Disabilities Act (ADA) is proving to be yet another sad example.
Consider what an employer has to do to try to obey the ADA. Even the job interview is a minefield. Julie Janofsky, a labor lawyer, patiently explained to me that it is forbidden even to ask certain disability-related questions. If an applicant comes to my office with his arm in a sling, I can't ask whether he's disabled. It would be "discriminatory."
I can't ask about past drug addiction -- or even about current addiction, if the drugs are legal. "You can't ask me if I'm addicted to Valium," said Janofsky, "because if I'm addicted to Valium now, I'm protected under the ADA."
How are employers supposed to understand this? I confronted Gilbert Casellas, head of the Equal Employment Opportunity Commission under President Clinton. He said the ADA is a wonderful law, and had the nerve to say it isn't complicated. "None of this stuff is rocket science," he said.
So I asked him about Janofsky's example: If you come to me applying for a job, and your arm is in a sling, can I ask you why your arm is in a sling?
"You can ask -- you know what? I'm going to ask you to stop the tape, because we're getting into -- "
I was incredulous. "You want to check?"
The head of the EEOC had just said the law wasn't complicated, and every employer in America is supposed to obey it, but he had to consult one of his experts.
They discussed the issue for about five minutes, and then Casellas indicated he was ready to resume. So I asked again, and this time he had an answer: "You can ask me whether I can do the job."
"You say the interview rules are simple," I said. "[Yet] you run the EEOC [and] you don't even understand them well enough. You have to stop and ask your assistant!"
"Well, because you asked me a specific question. . . ."