Does The Americans With Disabilities Act Allow Discrimination Against Persons Because They Do Not Have Disabilities?

The Americans With Disabilities Act (ADA) “prohibits discrimination on the basis of disability in employment, State and local government, public accommodations, commercial facilities, transportation, and telecommunications.” But does it prohibit discrimination on the basis of ability, i.e., lack of disability?

For starters, consider the following Question and Answer prepared by the Civil Rights Division of the Justice Department:

Q. Does an employer have to give preference to a qualified applicant with a disability over other applicants?

A. No. An employer is free to select the most qualified applicant available and to make decisions based on reasons unrelated to a disability. For example, suppose two persons apply for a job as a typist and an essential function of the job is to type 75 words per minute accurately. One applicant, an individual with a disability, who is provided with a reasonable accommodation for a typing test, types 50 words per minute; the other applicant who has no disability accurately types 75 words per minute. The employer can hire the applicant with the higher typing speed, if typing speed is needed for successful performance of the job.

Thus, if the Civil Rights Division is correct, an employer cannot be required to discriminate against a person lacking a disability. Yes, but does the ADA prohibit such discrimination? Is an employer “free” to prefer someone with disabilities over a qualified (even a higher qualified) applicant who suffers from having no disability? The history of how liberals have interpreted the 1964 Civil Rights Act suggests the answer to that question is not altogether clear.

Title VII (Section 703) of that Act declared it unlawful for an employer

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

Section 703 also declared it

an unlawful employment practice for any employer, labor organization, or joint labor-­management committee controlling apprenticeship or other training or retraining, including on­-the-­job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.

Now, if you think that’s clear enough you’ve obviously forgotten Brian Weber and the ability of Justice Brennan and his Supreme Court colleagues to construe themselves out from under the constraints of “literal language.”

Weber, to refresh your memory, was turned down for a training program because of his race. 50% of the slots were reserved for black workers, and Weber was rejected even though he had more seniority and worked under a union contract that ostensibly rewarded seniority. His mistake, according to Brennan and his colleagues in the majority, was his “reliance upon a literal construction of the statutory provision” — a reliance that Brennan declared “misplaced,” quoting an earlier Court construal declaring it a “familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.”

Having demonstrated his keen ability to divine the “spirit” of the Civil Rights Act by refusing to be bound by its “literal” language, Brennan moved on to rely on words not in the statute:

Opponents of Title VII raised two related arguments against the bill. First, they argued that the Act would be interpreted to require employers with racially imbalanced workforces to grant preferential treatment to racial minorities in order to integrate. Second, they argued that employers with racially imbalanced workforces would grant preferential treatment to racial minorities, even if not required to do so by the Act. See 110 Cong.Rec. 8618-8619 (1964) (remarks of Sen. Sparkman). Had Congress meant to prohibit all race-conscious affirmative action, as respondent urges, it easily could have answered both objections by providing that Title VII would not require or permit racially preferential integration efforts. But Congress did not choose such a course. Rather, Congress added § 70(j), which addresses only the first objection. The section provides that nothing contained in Title VII “shall be interpreted to require any employer . . . to grant preferential treatment . . . to any group because of the race . . . of such . . . group on account of” a de facto racial imbalance in the employer’s workforce. The section does not state that “nothing in Title VII shall be interpreted to permit” voluntary affirmative efforts to correct racial imbalances. The natural inference is that Congress chose not to forbid all voluntary race-conscious affirmative action.

Thus I repeat: does the Americans With Disabilities Act permit employers to discriminate against applicants or employees because they have no disabilities? (If you at first thought this was a stupid question, do you still?)

My question is prompted in part by a recent “informal discussion letter” from the EEOC warning employers that “requiring a high school diploma from a job applicant might violate the Americans with Disabilities Act.”

The “informal discussion letter” from the EEOC said an employer’s requirement of a high school diploma, long a standard criteria for screening potential employees, must be “job-related for the position in question and consistent with business necessity.” The letter was posted on the commission’s website on Dec. 2.

Employers could run afoul of the ADA if their requirement of a high school diploma ” ‘screens out’ an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of ‘disability,’ ” the EEOC explained.

If persons with disabilities are “underrepresented” in many companies and organizations where they could meet minimal standards, and especially if they could provide “diversity” to those organizations, is there anything in the ADA that would prevent persons without a disability from being treated the way Kaiser Aluminum, the United Steelworkers, and Justice Brennan and his colleagues treated Brian Weber?

What’s More…

I have discussed too many times to cite question of whether prohibiting discrimination based on sexual preference would permit, encourage, or even ultimately require preferential treatment of gays, but see here, here, here, here, here, and here for representative posts.