The president is full of hollow rhetoric about creating jobs, even though his stimulus package destroyed jobs in our export sector and wasted taxpayer money on subsidizing green jobs overseas, outsourcing American jobs and driving up unemployment. Meanwhile, his appointees at the Equal Employment Opportunity Commission are making sure that employers will be sued no matter what they do, such as ordering them to hire alcoholics to operate heavy machinery, even though such hires can lead to costly lawsuits against employers by accident victims. Who would want to set up a business if doing so requires you to make risky, potentially-costly hiring decisions?
The EEOC is demanding that trucking companies like Old Dominion Freight Line not only hire and employ “recovering” alcoholics, but also to allow them to continue working as interstate truckers rather than being assigned “to a less safety-sensitive position.” The EEOC notes that recovering alcoholics are covered by the Americans with Disabilities Act; but it ignores the fact that even recovering alcoholics often relapse into drinking, and “even well-run alcohol rehab programs are known for having high relapse rates.” The Americans with Disabilities Act (ADA) has a public safety exception designed to prevent things like alcoholics driving trucks (the so-called “direct threat” provision), but the EEOC has recently all but read that exception out of existence through pinched interpretation (In doing so, it has ignored binding federal appellate court rulings, like Doe v. University of Maryland Medical System Corp. (1995), which allowed an employer to not employ an HIV-positive surgeon because of a tiny but real chance that the surgeon would inadvertently transmit HIV to a patient. The chance of an alcoholic driver killing someone may be much greater than the chance of an HIV-positive surgeon killing a patient).
The EEOC’s demand puts employers like oil tanker operators and trucking companies in an impossible situation, because if they comply with its demand to employ “recovering” alcoholics, they will be subject to lawsuits — and demands for punitive damages — if the alcoholic driver or skipper has an accident that harms people or property. (Exxon ended up with $1 billion in punitive damages after it employed an oil tanker captain with a “history of alcohol abuse” who was involved in an oil spill. That was under federal maritime law, which is not as insanely pro-plaintiff as some states’ tort laws; for an example of how few limits exist on negligence liability in some state judiciaries, see this Montana Supreme Court ruling holding an aluminum bat manufacturer liable for injuries resulting from someone being hit by the ball after it was hit by the batter — even though that risk is inherent in baseball games.)
Employers that seek to avoid liability for accidents caused by recovering alcoholics who (unknown to the employer) have relapsed will also be harmed by the Obama administration’s recent attack on preemption. In a logical world, an employer that is forced to hire recovering alcoholics by a federal law like the ADA could argue that state tort laws that hold it liable for doing just that are preempted by federal law because such an application of state law frustrates the objectives of federal law and discourages compliance with the ADA. But the Obama administration has attacked preemption, depicting it as largely an illegitimate, made-up doctrine designed to favor business (even though preemption is provided for in the Constitution’s Supremacy Clause, has been practiced by the Supreme Court for two centuries, and has been applied to protect consumers, such as the black passengers who prevailed in their Commerce-Clause preemption argument against a bus-segregation law in Morgan v. Virginia (1945)). For example, the Obama administration believes that companies should be subject to suit in state court even for drugs that the federal FDA has found to be safe and effective, going “even further” than the notorious pro-trial lawyer decision in Wyeth v. Levine (2009), described as “the worst anti-business decision since” 1966. So employers who are sued as a result of complying with the EEOC’s demands will get no help from the federal government when they are sued under state tort laws.
The Obama administration’s demand that businesses make risky hiring decisions reflects its general antipathy to business, which is discouraging job creation. A liberal Yale professor recounts being told by a businessman that he would not hire more employees despite having a “successful business” due to the current political and regulatory climate. “How can I hire new workers today, when I don’t know how much they will cost me tomorrow?,” asked the businessman, “referring not to wages, but to regulation: He has no way of telling what new rules will go into effect when. His business . . . operates on low margins. He can’t afford to take the chance of losing what little profit there is to the next round of regulatory changes. And so he’s hiring nobody until he has some certainty about cost.”
Boston business owner Terry Catchpole noted in The New York Times that economic uncertainty due to Obama administration policies has wiped out jobs at companies like his:
Two years ago our executive communications company had 17 employees. Today it has seven . . . like many small businesses, we are dependent on big businesses as customers. And the big businesses that we would ordinarily depend on to become clients are sitting on their cash, because they are deathly afraid of an Obama administration that has been hostile to business . . . They have no idea where the administration’s next attack is coming from, and how much it is going to cost them to defend. So businesses do not spend money; they do not hire my company; and we cannot hire back those 10 good people we had to let go.
Democratic businessman Steve Wynn called Obama “the greatest wet blanket to business and progress and job creation in my lifetime,” saying that “the business community in this country is frightened to death of the weird political philosophy of the President of the United States. And until he’s gone, everybody’s going to be sitting on their thumbs.”