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Libertarians sometimes say that laws such as ADA lead, in the long run, to fewer people with disabilities being employed. How can that possibly be true? ADA is essentially saying that companies which employ people with disabilities need to pay less taxes.

Examples:

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    I'm unfamiliar with this position, but the ADA says a LOT more than just "companies which employ people with disabilities need to pay less taxes."
    – Ryan_L
    Oct 3, 2023 at 13:55

4 Answers 4

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I'll try to give a more concrete example. As with @bharring's answer, I am giving the argument, not endorsing it.

Alice is looking to hire a computer programmer. Bob is a fully qualified Deaf computer programmer. Bob can in fact do his job without any accommodation — we'll suppose he can read and write English fluently. But Alice knows that Bob could request ASL interpretation in certain circumstances. And when Alice googles it to find out what those might be, the answer is vague enough that she's not certain what it's going to cost her to hire Bob:

Do businesses need to have a qualified interpreter on hand in order to communicate with a person who is deaf?

Generally no, not if employees are able to communicate by using pen and notepad and it is effective. However, in situations where the exchange of information is over a long duration or the information being exchanged is complex it may be necessary for the business to provide a qualified interpreter. A business should discuss with the person with the disability to determine which auxiliary aid or service will result in effective communication.

(Maybe she'll conclude she needs to talk to a proper lawyer about it; and that will definitely have costs.)

Now, the ADA doesn't apply to companies with fewer than 15 employees. But suppose Bob would be number 14. Then Alice is putting herself in the position of having to make future hiring decisions based on her having previously hired Bob.

On the other hand, there's Chris, who is not Deaf and is equally qualified as Bob. Alice doesn't feel the need to become familiar with the law or to contact a lawyer before hiring Chris. So who's going to get the job?

Meanwhile, had there been no regulation, Alice wouldn't have to think about these potential liabilities. A libertarian would also probably be inclined to have a little more faith in human nature, namely that Alice might be trusted to make these accommodations out of the goodness of her heart, rather than having to be forced to do so by the law.

This kind of argument needn't make reference to disability status. The general argument is that any regulation is going to make it harder (i.e., more expensive, more uncertain) to do business. If you created regulations on employees who wear polyester, then it's going to have a chilling effect on the hiring of anyone who shows up to an interview wearing polyester.

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    – CDJB
    Oct 6, 2023 at 8:12
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The ADA is being criticized on 3 main points.

First, it puts the burden of expenses accommodating a disabled person on the employer, with no or insufficient compensation (such as tax breaks).

Second, it doesn't clearly defines what a "reasonable accommodation" is, which leads to lawsuits involving technicalities such as:

The last point is that you can get sued for simple non-conformance, not just for ignoring accommodation requests from disabled workers. It gives an incentive for lawyers to look for such non-conformances, then to find a disabled person willing to be the plaintiff and split settlement money with them.

This allegedly makes hiring disabled people less attractive than it would otherwise be.

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    These are all legitimate objections, but they are not libertarian objections, except in the general sense that libertarians are acutely aware of the shortcomings of broad-gauged laws. If the law said, “every business of more than 15 employees shall have a bathroom mirror 50" of the floor and shall be reimbursed $1000”, libertarians would still object to it. Oct 4, 2023 at 15:42
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    @MichaelLorton No true libertarian objects to a law in a way that a non-libertarian could agree with? :) Oct 5, 2023 at 7:45
  • You're making a case against a dysfunctional legal system more than specifically against a law requiring reasonable accommodations. You can find entire collections of lawsuits from the US that are far more ridiculous than those presented here (and which have nothing to do with the ADA), and there's no shortage of predatory lawyers looking to exploit people for a quick buck (and that'll be the case with or without the ADA).
    – NotThatGuy
    Oct 5, 2023 at 10:01
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    "it puts the burden ... on the employer" - the burden is on my employer to provide me with a chair, and a table, and a computer, and a workplace with reasonable protection from the elements, with a tolerable temperature, and reasonable access via stairs or an elevator, and so on. Why is e.g. a wheelchair ramp suddenly too much of a burden? (It's because things aren't built with those with disabilities in mind, so now we suddenly need to change everything, and it's such a burden, which it wouldn't have seemed like if we just considered the existence of that portion of humans from the start.)
    – NotThatGuy
    Oct 5, 2023 at 10:14
  • @NotThatGuy A little bit of a stretch, and we'll get to "it wouldn't have been such a burden for gas stations to install EV chargers if they just considered clean vehicles from the start". And if ADA-mandated accommodations should not be considered burden, why do they offer tax breaks at all? Oct 11, 2023 at 8:59
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First, the ADA is a lot more than tax breaks. It legally requires "reasonable accommodations" for disabled people. There are a lot of details and caselaw on what exactly that means, but the short of it is the law is intentionally vague so each case is mostly unique.

Their (not my) argument is it presents risks to employers.

Consider yourself a hiring manager. You bring in two interviewees, Alice and Carol. Both are about equal. Alice, while walking through the shop, draws everyone's eyes. You suddenly get the dark thought that she may get unwanted attention if she works here. Bob and Dan are good workers, and never had a complaint. But the way they looked at her... you're worried.

Sure, you should do something about Bob and Dan. That's not OK. But they haven't crossed a line permitting immediate, drastic action, so any fix there will take time.

You could really flip a coin between the candidates. But if it landed Carol, you don't need to worry about issues before you can address the Bob/Dan problem. No downside. So it landed Carol.

Congratulations, you just discriminated against good looking people.

This should be rare, even in their estimation. But there is no way to know the boss didn't randomly pick between candidates (or more likely value something unrelated instead). So even with laws against such a practice, there is no possible enforcement on individual cases short of mind reading, unless they get dumb and write it down. Disparate Impact can be used at scale to suggest its happening (like any other discrimination), but holders of this view typically view Disparate Impact analysis as not acceptable for legal cases.

To put a finer point on it, the belief is, if the employer knows a candidate is disabled (or has kids and is female, or may have them soon, or medical history, etc), the employer would prefer to hedge against hiring them for the risk issues may arise in the future.

I am describing their beliefs as I understand them; I am not making the argument.

Newsweek has a writeup: https://www.newsweek.com/did-americans-disabilities-act-hurt-some-people-disabilities-71541

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  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on Politics Meta, or in Politics Chat. Comments continuing discussion may be removed.
    – CDJB
    Oct 6, 2023 at 8:13
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It probably means that more accommodations are made mandatory. Like how mandating sick leave or vacation time makes employing people more expensive so less people are employed in general.

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