Mastering diversity: managing for success under ADA & other anti-discrimination laws

927 Pages·1995·2.86 MB·English

by  James Walsh

Mastering Diversity : Managing for Success
title: Under ADA & Other Anti-discrimination
Laws Taking Control Series
author: Walsh, James.
publisher: Silver Lake Publishing
isbn10 | asin: 1563431025
print isbn13: 9781563431029
ebook isbn13: 9780585044118
language: English
Discrimination in employment--Law and
legislation--United States, United States.--
subject
Americans with Disabilities Act of 1990,
Diversity in the workplace--United States.
publication date: 1995
lcc: KF3464.Z9W34 1995eb
ddc: 331.133
Discrimination in employment--Law and
legislation--United States, United States.--
subject:
Americans with Disabilities Act of 1990,
Diversity in the workplace--United States.
Mastering Diversity
Managing for success under ADA and other anti-
discrimination laws
James Walsh
MERRITT PUBLISHING
A DIVISION OF THE MERRITT COMPANY
SANTA MONICA, CALIFORNIA
Mastering Diversity
Managing for success under ADA and other anti-discrimination laws
First Edition, 1995
Copyright © 1995 by Merritt Publishing, a
division of the Merritt Company
Merritt Publishing
1661 Ninth Street
Santa Monica, California 90406
For a list of other publications or for more information, please call
[phone].
In Alaska and Hawaii, please call [phone].
All rights reserved. No part of this book may be reproduced, stored in
a retrieval system or transcribed in any form or by any means
(electronic, mechanical, photocopy, recording or otherwise) without
the prior written permission of the copyright owner.
Library of Congress Catalogue Card Number: 95-073598
Walsh, James
Mastering Diversity
Managing you workforce under ADA and other anti-discrimination
laws
Includes index.
Pages: 474
ISBN: 1-56343-102-5
Printed in the United States of America.
ACKNOWLEDGEMENTS
Writing this book has been a reportorial challenge. The subject
matterespecially the Americans with Disabilities Act and affirmative
action standardshas been changing almost daily since the project
began. Conventional wisdom about what these changes mean has also
shifted dramatically.
I've been lucky to have a strong staff at Merritt Publishing to help me
make sense of the chaos. We've developed a system that works well in
researching and analyzing complicated statute and case studies. Luisa
Beltran, Pat Sheppard, Tracy Lovik and Ericka Weeks have made the
breadth and depth of research in this book possible. Jan King has
helped shape it into a coherent argument. Ginger McKelvey has made
sure it's gotten into print quickly and cleanly. Mimi Tennant and
Cynthia Chaillie have made sure what's gotten into print makes some
kind of sense. I thank them all.
I also thank James Bovard, Robert Lattimer and Fred Lynch for
reading early versions of this book and offering their thoughts.
Finally, if a bit sentimentally, I thank my fatheralso James Walsh. He
knows the federal legal system intimately. He's helped me in various
large and small ways to think about its problems without getting
distracted by trivial points.
Mastering Diversity is the fourth title in Merritt Publishing's "Taking
Control" series, which seeks to help employers and business owners
deal with the host of extraordinary risks facing the modern business
enterprise.
Upcoming titles will cover workplace safety, business insurance,
employee compensation and other topics. To keep these projectsand
the series as a wholewell focused, the editors at Merritt Publishing
welcome feedback from readers.
JAMES WALSH
Page i
TABLE OF CONTENTS
Introduction: Diversity as a Virtue 1
Chapter 1: Disabilities 21
Legislative and political history, Enforcement, The
EEOC likes consent decrees, Compliance, Reasonable
accommodation, ADA and hiring, Perceived disability,
Drug and alcohol use, ADA and AIDS, Effects of a
reorganization, ADA and mental health, Genetic testing,
Pensions and other benefits, Legal strategies, Related
laws, Laying off an injured worker, A focus on training
Chapter 2: Age 93
Legislative and political history, Age is something that
effects everyone, Enforcement, Compliance, Legal
issues, Willfulness and liquidated damages, Mitigating
circumstances, Age bias and downsizing, Benefits for
older employees, Mandatory retirement, Retirement
policies and pensions, Legal strategies
Chapter 3: Race, etc 145
Legislative and political history, Title VII is the key,
What the law's drafters said, Disparate impact, Business
justification, Title VII versus seniority systems, Locked
in a lesser position, Enforcement, Compliance, The Role
of Statistics, Statistics can rebut claims of intent, Title
VII and class action, Legal strategies, The growing role
of arbitration
Chapter 4: Family and Medical Leave 201
Legislative and political history, Pregnancy, Everyone
dreads the mommy track, How to respond to happy
news, Enforcement, Compliance, The mechanics of
unpaid leave, Communication, Conflicts with other
laws, Legal strategies
Page ii
Chapter 5: Gender Discrimination and Sexual Harassment 255
Legislative and political history, The mechanics of
gender discrimination, Equal protection, The Equal Pay
Act, Enforcement, Compliance, The costs of gender
stereotyping, Reverse gender discrimination, Sexuality
versus gender, Legal strategies, Sexual harassment
Chapter 6: Affirmative Action 309
Legislative and political history, Legal issues, The Small
Business Act, Privacy and internal audits, The
constitutionality of affirmative action, Quotas,
Compliance, A major affirmative action test,
Enforcement, A prima facie case built on statistics, The
end of affirmative action?, A killing blow
Chapter 7: The Effect of State Diversity Laws 367
Legislative and political history, Extending the
protections, Sexual orientation, AIDS affects legal
rulings, Protection for the poor?, The Unruh Act and
sexual harassment, Enforcement, The relationship
between state and federal laws
Conclusion: Diversity as a Business 403
Appendices 413
Index 467
Page 1
INTRODUCTION
DIVERSITY AS A VIRTUE
The blessing and the curse of workplace diversity is that it is a
virtuous idea. Long before anti-discrimination laws took effect,
enlightened business people sought a balance of race, gender and
background in the workplace because it was the right thing to doand
because it strengthened a company's collective experience.
Of course, others didn't see things this way. Because they could,
bigotted employers discriminated against employees or potential
employees. These bigots might have enjoyed the short-term
satisfaction of indulging their biasesbut, more importantly, they lost
any sense of virtue.
That sense of virtue fell to political activists and regulators. At its
best, this transfer took the form of the Justice Department forcing the
end of state-mandated racial segregation. At its worst, it took the form
of laws like the Americans with Disabilities Act.
Since the mid-1970s, workplace diversity has been regulated into a
compliance issue. Whether or not business people value diverse work
forces, they have to obey a complex body of federal and local laws
that try to control how people are hired, managed andif
necessaryfired.
The laws try to control these business functions. They don't always
succeed in controlling them. In this book, we'll consider how the
various federal