The price of employment “fairness”

If you receive an application for a position requiring a lot of driving or operating heavy machinery, and the applicant has a known history of alcohol or substance abuse, you’d probably be justified in turning the applicant down for the job, right?

You probably already know the answer to this, but: wrong.

A substitute bus driver for the Jefferson County, Colo., school district was cited for careless driving resulting in bodily harm after he struck three teenagers as they crossed the street on Tuesday.  The driver, David Shaw, was convicted of DUI in 1992 and according to friends had been in and out of alcohol abuse treatment as recently as 2009.

But even had the school district known this, they could not use it as grounds to terminate him, or even to make a hiring decision:

When asked whether Shaw would have been hired if the district had known he’d been in and out of addiction rehab treatment, a representative cited the American’s with Disabilities Act, which reads “‘It is illegal under state and federal disability laws to deny employment solely on the basis of a history of treatment for alcohol or substance abuse.”

Ignoring the DUI for the moment (which should have been caught in a background check), only the government could come up with employment policies which result in alcoholics driving schoolchildren around in buses.

It’s not that they shouldn’t be hired at all.  But the many-headed beast that is the Americans with Disabilities Act has made it virtually impossible to apply common sense when making hiring decisions.  And since the ADA has proved to be a potent legal weapon against businesses who have turned down or fired disabled workers, it has actually had the opposite effect it intended: employment of disabled workers have decreased steadily since passage of the ADA in 1989.  But as with most other anti-discrimination laws, merely suggesting that the ADA needs to be overhauled (or heavens forbid, repealed) makes one an enemy of the very group of people the law was intended (but failed) to protect.

More from another hater of disabled people, Cato’s Walter Olson, on the occasion of the ADA’s 20th anniversary.