Spring 2003 Cover Story: Forging a business model for diversity

Spring 2003 Cover Story: Forging a business model for diversity
by Wendy A. Hoke

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Diversity, discrimination and the law

There are several federal statutes that govern discrimination in the workplace, including:

Title 7 of the Civil Rights Act of 1964 as amended in 1991
Americans with Disabilities Act (ADA)
Family Medical Leave Act (FMLA)
Age Discrimination Employment Act
Pregnancy Disability Act

Some states also have ordinances that mirror what the federal courts do; however, New York state and Washington, D.C., offer protection that is much broader than the federal statutes.

Attorney Tim Williams predicts that within the next 10-15 years, legislatures throughout the country will expand anti-discrimination laws to include gays and lesbians as a protected class. City ordinances and some states have already addressed this issue head-on. Eventually the U.S. Congress will catch up, says Williams.

Litigation has increased since the 1991 amendments to the Civil Rights Act, says Williams. "That's a function of the remedies made available. Previously you could only receive back pay and attorney's fees. It takes one to four years to get to trial in federal district court on discrimination in the workplace and the most you could receive in compensation before 1991 was $20,000. Not many lawyers would take a case of that scope for that amount. With the changes passed in 1991, plaintiffs could sue for up to $300,000 in compensatory and punitive damages on top of back pay."

That may sound frightening to employers, but Williams says that if you own a company, you need to wrap your mind around the idea that employment litigation is a part of doing business.

"Recognize that it happens and take the proper steps to do preventive maintenance on the front end. About 70 percent of the time, an employee who sues feels he or she has been wronged, but he or she also feels as if the process has failed and that's where employers should focus their attention."

There are various forms of mandatory arbitration that can help to keep costs down by keeping potentially litigious cases out of court. e

What is a diverse company? It's more than the color, race and gender of your employees. It includes diversity of age, thought, background, suppliers and markets. It's seeing not only a rainbow in your workforce, but also in your market potential. And it could mean the difference between staying in business—or losing business.

Diversity is considered one of the 21st century's organizational trends for a number of reasons. Primarily it is a response to the changing demographics and globalization of the labor market.

Increasingly employers will have to manage a workforce that is getting more heterogeneous sexually, racially, culturally and individually. Diversity in your workforce and beyond can be an amazing source of innovation and creativity. But it also can be the source of conflict and communication problems.

Companies that don't engage in employing a diverse workforce are at risk of running themselves out of business. Clients, vendors and suppliers represent diverse industries, people, places and markets and your business has to respond in kind.

"It's hard to say what diversity is without using some tortured language," explains James Walsh, editor of Silver Lake Publishing in Los Angeles and author of "Mastering Diversity: Managing for Success Under ADA and Other Anti-Discrimination Laws."

"Basically it means that you hire, promote and fire employees and contract with vendors and suppliers based on honest, objective standards of performance," he says.

Admittedly, that definition doesn't come close to encapsulating all that a diverse workplace entails.

The biggest mistake an employer can make is hiring for diversity in appearance only and not for diversity of thought, according to Tim Williams, a partner with the national law firm of Constangy, Brooks & Smith LLC in Atlanta. "If a firm tells me they've increased minority representation by 10 percent to 15 percent, but they've not brought new ideas or experiences, they've not accomplished a diverse workforce."

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