Business Has To Find A New Meaning For `Fairness'

During some 30 years in the security business, Charles H. Wessel rose from guard to executive director of Chicago-based AIC Security Investigations Ltd. Then last year, he got inoperable brain cancer--and was fired by AIC for what it said was missing too much work. The 59-year-old Wessell sued AIC, arguing that he could still do his job at the time he was dismissed. And on Mar. 19, he won $572,000 in the first ruling of employment discrimination under the Americans with Disabilities Act (ADA).

AIC is the first of perhaps thousands of companies that may feel the ADA's sting. The 1990 law was designed to make public buildings accessible and to bar workplace discrimination against disabled people. Since the employment protections took effect last July, workers have filed more than 5,500 complaints with the Equal Employment Opportunity Commission. That figure is likely to hit 15,000 by October, according to the EEOC, or 25% more than it estimated for the law's first year. The volume of cases suggests that many companies--particularly small and midsize ones--are having trouble adjusting to the ADA. "People don't quite get it," declares Peggy Mastroianni, the EEOC's ADA policy chief.

DODGING WORK? The difficulty isn't cost, as most experts had anticipated. In fact, employers have found that many problems are easily solved. To help workers in wheelchairs, Greiner Engineering Inc. in Irving, Tex., installed a lighter-weight door on the women's restroom and raised a drafting table by putting bricks under its legs. "You don't have to do sophisticated structural designs and spend lots of money to be accommodating," says Tom R. Smith, Grenier's vice-president for human resources.

Instead, many problems stem from issues with which most employers are unfamiliar. A case in point is mental illness, the second-largest category of ADA complaints, about 9% of the total. Mental-health specialists contend that employers should give workers suffering from problems such as depression or stress time off for psychiatric visits and recovery. But businesses fear they will be forced to retain difficult employees or malingerers. "If an employee escapes the hardest part of a job by claiming stress, we're in trouble," says Washington management lawyer David Copus.

The ADA also conflicts with the way many employers handle workers' compensation claims. Companies often refuse to rehire employees who go on workers' comp unless they're 100% capable of doing their old jobs. Under the ADA, however, employers must bring back anyone they can "reasonably" accommodate. That's a change many are reluctant to make. Take back problems, which have cropped up in nearly 20% of ADA complaints. Many workers now request an early return to work after such an injury, says the EEOC's Mastroianni. The law requires companies to put them on light duty if possible and pay their regular salary.

ADA advocates argue that employers will benefit in the long run because workers' comp claims will go down. "Employers should pay injured workers to do productive work, rather than to sit at home," says Christopher G. Bell, a former EEOC lawyer who helped write the ADA rules. Still, that's not always possible. "What do you do when you're a small company and all the jobs require lifting?" asks Turner R. Lindsey, CEO of MMC Industries Inc., a 45-employee marble producer in Mobile, Ala.

CULTURAL CHANGE. AIDS is another nettlesome issue. Last year, the U.S. Supreme Court let stand a lower-court finding that federal law lets employers exclude AIDS coverage under self-insurance plans. But in January, the EEOC held that a New York City health-care plan run by the Mason Tenders District Council violated the ADA when it dropped HIV coverage last year. The EEOC opinion shows that "employers can't use self-insurance as a way to avoid covering people with expensive disabilities," says Cary LaCheen, a lawyer for Terrence P. Donaghey Jr., a construction worker with AIDS who brought the charge to the EEOC. The union maintains that the ADA doesn't govern self-insured benefits plans.

Perhaps the biggest challenge for employers is the cultural change the ADA requires. "For years, being fair has meant treating everyone the same," Bell says. "Employers are uncomfortable with accommodations because that's treating someone differently." But if many ADA complaints are upheld, companies will have to meet a new standard of fairness.

DEALING WITH THE ADA
      Some suggestions on how employers can avoid violating the Americans with 
      Disabilities Act:
         Appoint an ADA mfficer. This person should set a uniform company policy and 
      advise executives at every level on how to follow it.
         Make accommodations. Companies that are flexible often get brownie points in 
      court if they're sued. Be open to changes in job requirements, schedules, and 
      the work environment that will help disabled employees do their tasks.
         Consult. Solicit ideas from disabled employees and non-profit groups that 
      represent disabled people. Such ideas are often more useful and cheaper to 
      implement than blanket changes suggested by consultants.
      DATA: BUSINESS WEEK