Government’s Presence in the Workplace Growing Larger All the Time
The recent debates over parental leave and civil rights legislation obscure a more fundamental trend: the rising presence of government in the workplace. Companies are now gearing up for compliance with the recently enacted Americans with Disabilities Act (ADA) as well as the new civil rights law. Other expanded regulations are already in view.
In the case of ADA, both the law and regulations issued to date are vague. The Equal Employment Opportunity Commission (EEOC) says it will evaluate claims on a case-by-case basis. This means the new law will be shaped primarily by court decisions to be made over the next several years. In the words of a Justice Department pamphlet explaining ADA, “Some litigation is inevitable.”
The regulations state that an employer may not deny a job to an individual with a disability merely because of a slightly increased risk. The risk can only be considered when it is significant--that is, when it poses a high probability of substantial harm. Determining what is required to satisfy the “reasonable accommodation” standard will vary from situation to situation and will, in part, be dependent on the size and financial strength of the employer. Those charged with drawing the line between slight and significant and reasonable and unreasonable will need the wisdom of Solomon.
EEOC expects to receive 20% more charges of discrimination this year when it begins enforcing ADA. EEOC Chairman Evan Kemp believes that the law is a “more complicated act to enforce” than Title VII of the 1964 Civil Rights Act. EEOC anticipates that a significant portion of the cases will require the use of medical, architectural, biotechnical or vocational specialists.
The new disability law can surely be justified on grounds of compassion. It is heartwarming to learn that employers will be encouraged, for example, to provide readers for the blind. Yet it is difficult to understand how paying two people to do essentially one job can be cost-effective--no matter how large and well-financed the employer may be.
Coming down the pike is COSHRA, the proposed Comprehensive Occupational Safety and Health Reform Act, introduced by the chairmen of the House and Senate Labor Committees--Rep. William Ford (D-Mich.) and Sen. Ted Kennedy (D-Mass.).
COSHRA develops the notion of employee “right to act.” Workers could take legally protected action to stop what they consider to be unsafe conditions or procedures, even if that brings production to a halt. Legitimate differences of opinion can arise about the appropriateness of a given production process or procedure. Shifting the decision-making authority away from management would be a significant departure in our private-enterprise system. Such broad new rights could create opportunities for mischief during periods of controversy such as union-organizing campaigns.
The proposed statute also expands the “shut down” authority of OSHA inspectors. Under the Kennedy-Ford proposal, equipment deemed “unsafe” would be “tagged out” by OSHA until the problem is corrected. The employer would be forced either to accept OSHA’s remedy or to contest the citation while production remains at a standstill.
An indication of things to come is contained in a 1991 report on employee leave issued by the National Research Council, an agency of the National Academy of Sciences. The council’s study goes far beyond the relatively modest bill mandating unpaid leave, which was vetoed by President Bush.
The council concluded that U.S. employers have not kept pace with the needs of a diverse work force. To quote from its publication: “Many employers have not yet adapted to the legitimate needs of workers with family care responsibilities.” The report offers several expensive recommendations, including paid family leave to care for infants and ill family members, and paid sick leave, including leave for disabilities related to pregnancy and childbirth.
The panel came up with an intriguing conclusion: Employers should share the responsibility of making it possible for workers to do justice to both their jobs and their families. To some extent, this would force private practice to complete a circle of change. Just a few decades ago, women and other unmarried employees lamented the tendency for employers to be more generous to married men, which was justified on the ground that they had families to support. Since then, laws and regulations have prohibited such discriminatory practices.
Yet enactment of the proposals of the National Research Council would establish a new set of inequities in the workplace. Employees with greater family responsibilities would receive larger total compensation packages than workers who are identical in every way (seniority, productivity, etc.) except for family status.
