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The Sun (Baltimore)
May 25, 1997

'The Excuse Factory': the law gone insane?

David W. Marston

Just as life-saving air bags may decapitate small children, any collision of good intentions and massive federal regulation is likely to produce unintended consequences, especially where the regs are enforced by plaintiff 's lawyers grabbing up to 40 percent of the take.

"The Excuse Factory" is the first serious attempt to survey the sea change of recently enacted employment rules, which now require employers to make reasonable accommodation for disabled workers (including alcoholics, drug abusers and 300-plus varieties of mentally ill), to banish bias, and to prevent sexual harassment (which is almost anything the employee finds offensive.)

This book succeeds. As in his prior book, "The Litigation Explosion," Walter Olson brings historical perspective, insightful analysis and common sense to a subject mostly lacking all three, and this highly readable account deserves a wide audience and should provoke serious debate. The only notable shortcoming in "The Excuse Factory" is its title, which does not begin to suggest the book's scope and energy. 

A Senior Fellow at the Manhattan Institute, Olson describes how victim advocacy groups have rammed through laws and rulings affecting every American workplace, often without serious debate, but with frequently absurd consequences. 

Consider: A deaf student demanded that a CPA review course be given in sign language. The course provider declined, since the cost of a signer would far exceed the student's tuition. Federal enforcement followed, the school agreed to provide the signer and pay damages. End of story, until a second student demanded two signers working in shifts, to protect against carpal tunnel syndrome. (And the cutting edge issue now is whether disabled employees can demand the hiring of personal assistants as part of reasonable accommodation).

Employee testing, considered unfair to many protected groups, has been largely eliminated. An Ohio federal judge rejected a timed test where prospective firefighters ran upstairs carrying dead weights (men beat women), ruling that the idea that fires must be put out quickly is merely anecdotal.

A Northwest Airlines pilot who was jailed after flying 58 passengers through a winter storm while legally drunk (leading late-night TV comics to predict passengers would ask for whatever the captain's having during beverage service) was quietly returned to flying duty by the airline, to avoid certain legal liability. His lawyer said that was the only way his recovery will be validated. 

"The Excuse Factory" captures the Alice in Wonderland quality of the new employment law, in which nearly every worker, accept healthy white male under 40, is now a protected category (obesity being the latest condition to enjoy federal protection, and exotic body piercers might be next). Every hiring and every firing is thus a potential lawsuit. 215 unexcused absences over a two-year period, for example, was not cause for firing a black worker, when a white employee with 142 absences during the same period was suspended four times, not fired. Result: a $125,000 award, plus reinstatement with full seniority.

But like air bags, the new rules are having unintended consequences, and Olson describes them fully. In his introduction, the author writes I hope this book will help make the contentious world of employment law even more controversial. It will.

David Marston, a partner in the Philadelphia law office Reed Smith Shaw & McClay, was a U.S. attorney in Pennsylvania from 1976 to 1979 and before that was a legislative counsel.

©1997 The Sun (Baltimore)

Visit The Excuse Factory webpage



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