New "Civil Rights" for the Handicapped

The Governor has recently signed a bill which amends Michigan's Handicapped Civil Rights Act (HCRA). The bill is supposed to correct what some handicapper rights advocates claim was a mistaken interpretation of the HCRA by the Michigan Supreme Court. While it may be debated whether or not the Supreme Court's decision was correct, it is beyond debate that this new law represents a gigantic expansion of governmental authority over employers. It will raise costs, waste resources, further clog the court system, and may threaten job prospects for the very people it is designed to protect.

A brief history is necessary to understand this legislation. In 1986 the Supreme Court decided the case of Carr vs General Motors. Carr was a GM employee, and he sought a promotion to a job which would have required him to lift heavy loads. His doctor, however, had advised him against heavy lifting because of his bad back. When GM turned Carr down, he sued, claiming that the company had violated the HCRA, which requires employers to make reasonable accomodations for handicapped individuals. Carr argued that the law compels employers to spend money so as to make it possible for handicapped persons to perform jobs they are otherwise unable to do.

The Supreme Court decided against Carr, ruling that the law only applied to handicaps unrelated to one's ability to perform a job. The decision was immediately attacked by handicapper rights advocates, and their legislative allies introduced bills to overturn it.

The bill which has been passed requires all employers in the state to accommodate handicappers, even for handicaps which directly affect their ability to do a particular job. Employers now are obligated not only to make their workplace accessible to the handicapped, but also to make it possible for them to do jobs they want but are incapable of doing on their own.

How much is an employer required to spend? The new law sets some limits. For employers with one to three employees, the business does not have to spend more than the state's average weekly wage (SAWW--currently $474) on any accommodation device, but must spend up to seven times the SAWW ($3318) where the handicapper's visual or hearing disability requires a reader or interpreter.

Those expenditures are defined as not posing any undue hardship on the employer, so it won't even do any good to argue that the business just can't afford the accommodation. For larger firms, the limits are higher. At the level of only 25 employees, the limits are 2.5 times SAWW for devices and 15 times SAWW for readers or interpreters. This cap on spending for devices isn't even really a cap, though, since the handicapper is free to argue in court for any amount as long as it doesn't create "undue hardship." Plantiffs' lawyers will have a great time with that.

Moreover, non-profit and municipal employers are always under the "undue hardship" test. Just imagine the possible suits. A city, for example, might be forced to spend more on an accommodation than the handicapper's yearly pay, as long as the court didn't think it an undue hardship for the taxpayers.

Certainly handicapped people have rights, but their rights are adequately protected under current law. What this new law does is to countenance widespread violations of the rights of others. To force a business or city or church to spend some of its limited resources on an accommodation so that one particular person can do one particular job is to deprive it of property and interfere with its rightful decision-making.

Potentially one of the most tragic results of this new law is that employers may become even more reluctant to hire handicapped people in the first place. Although current laws prohibit discrimination on the basis of handicap, there are always instances where the qualifications of two candidates are nearly identical, even if one is handicapped. Even the most well intentioned employer, when faced with the potential of having to spend several thousand dollars per year on extra accomodations, may be forced to hire the non-handicapped person simply for the firm's own economic survival.

Another undesirable aspect of this law is that it will breed needless litigation. For all but very small businesses (24 or fewer employees), there is no set limit on what a firm can be forced to spend on an accommodation for a handicapper. A court can order anything as long as it won't cause "undue hardship" to the employer. Attorneys will have a field day with that vague language, and the cost of producing goods and services will rise as a result.

Handicapped people have always been an important part of the labor force. Many businesses have learned that they are often the best of employees, and gladly hire them for jobs they can do. Some make accommodations voluntarily. It is a mistake, however, to give the handicapped "rights" in the job market not enjoyed by others. Introducing the heavy hand of government control into what should be a private and voluntary contractual relationship between employer and employee will produce very harmful effects.