Occupational Hazards

Why "sued if you do, sued if you don't" is the new rule in employment law.

Walter Olson from the May 1997 issue

(Page 2 of 3)

Even more corrosive is the vagueness. How is an employer supposed to tell which of its employees count as legally disabled and thus covered by the ADA, how much accommodation for which of them is reasonable, when the costs of compliance finally amount to undue hardship, when a boisterous or tense working environment reaches the point of being hostile, when a suspension or failure to promote will count as having been for good cause? The answer is that it frequently does not and cannot know. Complying with laws of this sort is not like stopping for red lights or staying within a speed limit; one would wait forever for the light to turn green, and being an employer is unsafe at any speed. Instead you must act first and then learn later whether you've acted lawfully, when a lawyer hauls you before a jury to demand a fortune.

Constant jeopardy is inevitable as well because the law takes so many commonplace work situations and turns them into potential suits. Not only is every firing open to challenge; so is every failure to hire or promote, as well as an endless array of problematic working conditions, pay disparities, and criticisms or other remarks that might have given pain. (As Camille Paglia puts it, every workplace is hostile.) Pretty much all employee selection and evaluation methods, very much including the subjective and word-of-mouth methods most in use, show disparate impact or are legally suspect for some other reason. "Absent discrimination," the Equal Employment Opportunity Commission has proclaimed in one of its baldest defiances of reality, "one would expect a nearly random distribution of women and minorities in all jobs." Absurd though that standard may be, it guarantees the commission a full docket till doomsday.

Shrewd enforcers know they do not want regulated parties to achieve definite compliance; that would badly undercut the basis of their power. When the EEOC issued its landmark rules on the use of employment tests, a Justice Department official observed that "the thrust of the proposed Guidelines is to place almost all test users in a posture of noncompliance" while giving "great discretion to enforcement personnel to determine who should be prosecuted." That discretion suited enforcers just fine, since it meant their inspectors met a very obliging if not obsequious reception. Alfred Blumrosen, a professor at Rutgers law school who directed the EEOC's enforcement operations for many years, has described the agency's periodic inspection visits to large employers during his years as a "nibbling" approach--"the government will take an arm this year and come back next year for an ear or a leg." At each visit inspectors could add new demands "where the violations appear clearest or where the resistance to change might be less." (Uniroyal got an unpleasant surprise this way in one early case: An inspector had observed and let go its practice of maintaining separate seniority lists by department, a then-common practice; later officials decided it ought to be against the law, costing the tire company an estimated $15 million to $20 million in resulting contract-debarment proceedings.) An important point, in Blumrosen's view, is that "the government does not give the regulated institution a clean bill of health" at any point in the process.

Almost by necessity, staying abreast of legal obligations now tends to become a specialized function within employers. Line managers simply cannot assimilate the whole mass of new law; even if they each took a sabbatical year to study their legal obligations, the flow of new laws, regulations, and court rulings would soon render their knowledge dangerously obsolete. Increasingly, therefore, all large employers and many of the small maintain ongoing and formal efforts devoted to compliance. Even if they can't bring full compliance within reach, these departments can make a valuable contribution by improving the employer's odds.

A serious compliance effort can be expensive even for an employer with no unusual work force problems. Some internal inspection process will be recommended to check on whether far-flung offices have followed company policy. The government has provided a steady diet of new responsibilities for personnel specialists: harassment and sensitivity training and complaint hotlines, disability and language accommodation issues, "family-friendly" policies with their growing legal component, and on and on. Since staying current on the ever-changing law is of the essence in all these areas, one soon tends to become a customer of the sprawling industry of seminars and conferences, looseleaf services, newsletters, and hotlines on new developments.

Compliance incentives often cut in the direction of standardizing company policy on various personnel issues and practices, centralizing as well as formalizing policy. One reason is that over a wide range of situations, provable inconsistency is more legally dangerous to an employer than foolish consistency. Suppose the job specs for a certain type of position have always called for an MBA, but a dream candidate shows up who isn't one: Bending the rules to take him comes at the risk of giving both past and future disgruntled applicants ammunition to portray the requirement as a mere sham. The problem often comes up in employee discipline cases: It's actually legally dangerous for managers to be lenient in overlooking employees' infractions of company rules. "Uniform application" of a rule against résumé inaccuracies is "critical," warns Detroit attorney George Mesritz, lest the employer lose the right to press the matter in more urgent cases. An Investor's Business Daily account likewise advises the employer to resist the temptation to let absenteeism rules go unenforced in the case of an employee with an otherwise fine record, because it could find itself having lost the right to enforce the rules. "Compassionate leave" policies governing such matters as time off when a family member dies get enmeshed in equally dismal complications: Lawyers for other workers may seize on the granting of one variance as a precedent denied their own clients in their less sympathetic situations.

The results are as perverse as anyone could have wished. Fear of the leniency-for-one, leniency-for-all rule leads some companies to discipline or even fire workers they'd rather have retained. Compassionate leave is doled out with an eyedropper on advice of counsel. At the extreme, the totally rule-bound company begins timing people's bathroom breaks.

Many courts and regulators construe inconsistent or informal policies as evidence of a cavalier attitude toward compliance or even as violations in themselves: If a company hasn't kept written records of requests for permission to vary from vacation policy it may not notice a pattern in which women have fared worse than men at getting such permission, which suggests it doesn't care whether that happens. The Automobile Club of Michigan lost a case after a court cited its lack of
"consistent and public standards" in personnel decisions, including its failure to maintain a "systematic job description and evaluation system." In harassment law and increasingly in other legal areas, failure to maintain a formal policy on a topic can lead to payouts even if the policy would not have prevented or resolved the worker's grievance.

The pressure for formal consistency and against managerial discretion has helped encourage one of the policies most irritating to ordinary employees, the across-the-board drug test. When companies institute such tests the most frequent question from employees is why they aren't just testing workers who have shown some performance problem suggesting impairment. But singling out an employee that way invites suit for defamation, infliction of emotional distress, and other atrocities. Across-the-board testing intrudes on a far larger class of employees, but is paradoxically safer for most legal purposes because it is freer from the taint of individualized manager discretion.

The threat of company-wide punitive damages is another legal pressure strongly encouraging centralization. Prevailing doctrines allow juries that discover a violation at any of a huge company's far-flung subsidiaries to levy punitive damages based on the parent enterprise's wealth, just as if that parent enterprise were a single brooding intelligence rather than (say) a bunch of fairly autonomous enterprises responding to the center mostly on matters of finance and capitalization. But once higher-ups realize that the off-the-wall personnel decisions of the tiniest operating unit in the smallest town can anger some jury into lopping off a third part of the parent company's assets, many will resolve to make sure nothing of the sort happens by hiring headquarters staff to start issuing central personnel policies, thus becoming (self-fulfillingly) something measurably closer to the lawyer-portrayed octopus of unitary brain and intention.

Another inevitable result of the compliance culture is the growing number and clout of attorneys within organizations of all sorts. Lawyers, both in-house and outside, are needed to vet employee communications; hover in the background in dismissals, individual reprimands, or warnings; monitor the keeping and timely destruction of personnel records; plan layoffs and buyouts; and on and on.

Many of the compliance issues surrounding the ADA offer case studies in how sweeping employment laws tend to abet centralization and bureaucratization in the workplace.

In one of its least-noted but most disturbing effects, the ADA gives employers powerful new reason to devise and adhere to formal job descriptions. The law holds that a disabled worker turned down for a job because he can perform only some of its functions can sue on the grounds that the other duties are not truly essential. Aware that this "essential functions" doctrine opens up formidable scope for messy factual disputes, the law provides that courts should grant some deference to the employer's own ideas on which functions are essential, but on the condition that it put a job description in writing before being faced with the disabled person and his particular shortcoming. The rationale for requiring prior written descriptions is that otherwise employers might tailor job requirements to exclude a particular unwanted applicant who has begun raising a fuss.

The drawing up of legally robust job descriptions for this purpose is no light undertaking. To begin with, a job's most fundamental aspects will be among the easiest to overlook: Omit to stipulate that applicants be able to read handwriting, or show up on time, or remain quiet when unattended, and there may be no chance for second thoughts later. It will be highly dangerous to rely on the language of job descriptions prepared earlier without legal implications in mind, which are in any case notoriously inaccurate and incomplete at many companies. An Employee Relations Law Journal article advises that descriptions be worded by persons seasoned in ADA issues. It adds that descriptions should draw on "behavioral profiles of successful incumbents" prepared with input from expert psychologists, which at the same time must not demand traits found in uneven proportions among different demographic groups. It's a tall order, for which all but the largest businesses will think of hiring an outside consultant. The expense mounts up: Thus the city of Baytown, Texas, found it would cost $81,000 to have a consultant prepare ADA job descriptions for its 270 job titles, though it managed to reduce the outlay by collaborating with a consortium of similar-sized towns.

For many organizations, the real cost of ADA job descriptions will go far beyond a consultant's fee. To begin with, many will (rightly) sense that the description on paper is to an extent legally binding on them, even when it begins to seem unrealistic. There will also be a reluctance, common in bureaucracies, to create new job classifications freely or reassign duties among incumbents. For reasons like these, many employers would not want fixed and obligatory job descriptions even if they came drafted with great skill for free. Newer, fast-growing companies in fluid industries are especially prone to disparage the "job-description mentality" in favor of shifting talent around ("forget what you were doing, come over here and help with this"). It is not that the free-form entrepreneurial model is somehow "better" than the highly structured model; different forms appear best for different tasks. But a distinctive strength of the American economy has been its compatibility with both. Economies like Germany's and Canada's, which generate some successful bureaucratically organized companies, have had far more trouble nurturing the entrepreneurial kind. Laws like the ADA tilt our playing field, too, toward the organizationalists.

Comments

nfl jerseys|11.16.10 @ 3:05AM|#

cryhfgb

منتديات العراق|8.16.11 @ 8:55PM|#

thank you

http://www.iraqn.com/
http://www.v9f.net/chat

قبلة الوداع|8.17.11 @ 8:36PM|#

thank u