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Reasonable principles extend to far-reaching social change

February 19, 2001

Two odd and recent news stories got little attention in the mainstream press. A Pennsylvania woman, fired after a long record of obnoxious behavior, sued her employer in federal court and won a key ruling. The judge said the woman was indeed “belligerent” and “unprofessional.” She wrote abrasive e-mail and sassed her superiors. But because she was suffering from depression, the judge said she was protected by the Americans with Disabilities Act (ADA). So if a jury agrees with her at trial, her employer, Unisys Corp., will have to take her back and accommodate her somehow. The other story involved an 8-year-old Arkansas boy who was suspended from school for three days for pointing a breaded chicken finger at a teacher and saying “pow, pow, pow.”Both these stories went directly into my file folder marked “extension.” This is where I stuff clippings about perfectly reasonable social or legal principles that are carried way too far, resulting in essentially insane policies. When the ADA was debated a decade ago, nobody suggested that it might one day be used to force employers to accept disruptive and insubordinate workers or sales people who curse the customers. Discussion focused on people with severe and mostly visible disabilities. Almost no one thought that backers of the ADA would push to include neurosis, drug habits, bad backs or high blood pressure. And when school boards passed zero-tolerance policies on weapons in schools, nobody predicted that offenders would include tots with water pistols, rubber knives, key chain ornaments and chicken fingers.

Quiet overextension of accepted principles has become a standard political tactic. It can produce a lot of social change all at once, often without the bother of consulting the electorate. Take the concept of sexual harassment. What began in 1986 with a Supreme Court ruling in a case that involved repeated sexual assaults by a woman’s boss established a legal doctrine now used to go after school teasing by first-graders and chuckling at the water cooler over naughty jokes on “Seinfeld.”

This constant ripple effect of sexual harassment theory has produced a broad, free-standing doctrine of harassment. Under many circumstances, almost any act or expression that makes someone uncomfortable can bring legal action. For instance, Britain’s Human Rights Act outlaws physical, emotional and verbal bullying at schools. It led to guidelines issued by a teachers’ association that ban sarcastic remarks and offensive gestures and rumors. The guidelines seem to be be derived from the worst of the American college speech codes, which in turn owe a lot to our ever-expanding harassment doctrine.

U.S. policies on asylum show the same sort of extension. Asylum is allowed to those who face persecution on the basis of “race, religion, nationality, membership in a particular social group or political opinion.” But “social group” has recently been stretched to include disabled people, women who fear genital mutilation and homosexuals who fear persecution. The compassion is admirable, but identity politics and ideology are creeping in.

Now feminists are pushing to include domestic violence. To establish the precedent, they have chosen a strong case: a Guatemalan woman, horrifically abused for a decade by her husband. On her way out the door, Janet Reno issued a ruling in favor of the woman, who apparently will be an early test of the new compassionate conservatism. What’s at stake behind this truly heart-rending case is a huge extension of political asylum. This expansion makes sense if you agree with radical feminists that domestic violence is gender-based persecution conducted or encouraged by the patriarchy. But if you have a less politicized view of the issue, the expansion means that political asylum will now be stretched to cover the social problem of incompatible, warring spouses around the world.

Many extensions have been rather breathtaking gambles to solve our race problems. One was the extension of the concept of discrimination to include disparate impact — even without an intention to cause harm, fairly constructed policies that proved to have a heavier impact on minorities were classified as discriminatory. In their book “Reaching Beyond Race,” political scientists Paul Sniderman and Edward Carmines call this a “strikingly successful” move by courts and agencies, but one that required “silently substituting a conception of discrimination which ordinary citizens do not share.”

This is the obvious downside of extension maneuvers. If they have no consensus behind them, and if they seem to violate the common sense of ordinary people, they are almost always headed for trouble.

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