Disabilities and Inabilities

Must we pay to hear bad pianists?

In the term now ending, the Supreme Court issued three decisions limiting the reach of the Americans With Disabilities Act. My favorite is Toyota v. Williams, holding that carpal tunnel syndrome did not qualify as a disability for a woman who worked on an automobile assembly line. The lower court had made the mistake of concluding that the woman was disabled because her condition prevented her from doing her job. That seems sensible, but it’s a trap, because if she really can’t do her job, the law says it doesn’t apply to her.

Trying to interpret a law that expects people to be abled and disabled simultaneously, the court plunges into a festival of Talmudic distinctions. Is “working” a “major life activity”? Do we mean working in a “specific job” or working in a “broad range of jobs”? What about “performing manual tasks”? Is that a “major life activity”? Can it be “specific,” or does it need to be a “broad range” like “working”? (The justices’ uncertainty about whether working is a major life activity makes you think it must be very pleasant to be a Supreme Court justice.)

Making it illegal to discriminate against people with disabilities is a noble idea, but a peculiar one. After all, forbidding discrimination against people who possess a particular characteristic amounts to forbidding discrimination in favor of people who don’t possess that characteristic. If you outlaw discrimination against blacks, you are also outlawing discrimination in favor of whites.

In the case of racial discrimination, that is no problem. But discrimination based on disability is different. The opposite of disability is ability. For millions of years until the ADA was enacted in 1990, discriminating in favor of ability was thought to be a good thing. It still is, most of the time. Employers prefer competent employees to incompetent ones. Sports fans unabashedly show more enthusiasm for more talented athletes. Music enthusiasts shamelessly buy concert tickets for superior performers. Innate ability isn’t the only ingredient, but without it even practice, practice, practice won’t get you to Carnegie Hall.

Indeed the free-market economic system is a machine for rewarding ability. The more ability, the bigger the reward (at least that is how it is supposed to work). And this is generally regarded as a good thing, not a bad one. It is crucial, in fact, to the prosperity that allows us to indulge in exercises of social justice like laws protecting the disabled.

The ADA was enacted and signed by a Republican president, the elder George Bush, without much controversy compared with the epic struggle over the original Civil Rights Act. But in a couple of ways, it is an even more radical exercise in social engineering. First, it focuses directly on those aspects of the human condition in which we are, in fact, objectively unequal. Second, its implied vision of a society that overcomes differences in ability is far more ambitious than the equivalent visions, implied in earlier civil rights laws, of a society that overcomes differences in race or sex.

The ADA, in fact, neatly exposes the weakness and confusion of “equal opportunity”—the concept invoked in support of all our anti-discrimination laws. The closer we come to eliminating discrimination based on race or sex, etc., the more important innate ability will become in assigning people their stations in life. And if we ever were to eliminate all differences in outcome based on differences in ability, that would not be equal opportunity. That would look more like equality, period. Or, to use the pejorative term, “equality of result.”

The ADA itself, of course, does not even aspire to total leveling. Differences in ability only matter to the law if the ability of one person in the comparison falls below a threshold into territory labeled “disability.” And the law does exempt disabilities from its protections when they are “job-related.” But the line between ability and disability is inherently arbitrary, and the effort to protect disabled people from job discrimination without forcing employers to hire less-qualified candidates is inherently self-contradictory.

Yes, there are cases where an employer won’t hire a one-legged man as a typist—where the disability is totally unrelated to the ability required or can be accommodated with almost no burden. That kind of discrimination makes no sense. But discrimination based on ability usually does make sense. That doesn’t make it right. Racial discrimination can also make sense sometimes—it might be more efficient for an employer to hire whites only than to consider each candidate individually—and we have no trouble saying too bad: That is unfair, and you cannot do it. But racial prejudice at its heart is irrational, whereas prejudice in favor of ability is not.

A law can do much practical good even if it is logically incoherent, and the ADA certainly falls in that category. And beyond its practical impact, the ADA is noble for its built-in philosophy that rewarding differences in ability is unfair. It’s a vision that is unachievable and one that most Americans probably don’t even think they share. But the instinctual popularity of the ADA suggests that Americans are more radical believers in equality than they realize.