Forced Opportunities
This blog occupies a niche straddling the legal profession and general business management. Thus, today we find connections between two articles or posts, one addressing management issues from the small business section of the New York Times and the other addressing employment litigation issues from a the New Jersey Employment Law Blog.
The Times gives us as an example of “making lemons into lemonade” (“A Business Forced to Shrink May Be Stronger” by Paul B. Brown). The premise is stated in the title. The article identifies certain advantages to a business from staying small: less bureaucracy, greater engagement, easier to understand where people fit in and people believe in the company. The article also gives suggestions on ways to get stronger while staying small: outsource low-impact functions, focus on only profitable clients, stay flexible and change the business model when competition changes.
The “lemons and lemonade” part comes in because staying small may, in fact, be forced on a business by the declining economy, which is the lemon part. Using the bitter experience to get stronger is the sweet, lemonade part. Incidentally, I first encountered the lemon and lemonade metaphor many, many years ago in advice columns be either Ann Landers and Dear Abby (or both, being twins, they thought alike). So, a metaphor that old is on its way to becoming a cliché but there is always an element of truth that creates clichés.
The reminder about the lemonade cliché or metaphor caused me to read a little differently the recent post about the ADAA in the NJ Blog (“2009 Starts with New Challenges for Employers” by Frank Steinberg). The ADAA is the Americans with Disabilities Amendments Act, signed into law this past fall by President Bush and effective with the new year.
Citing other writers, the post concisely identifies key issues raised by the amendments to the ADA: Congress, in passing the amendments, reversed a series of Supreme Court decisions that had limited the definition of “disability” and, therefore, limited the ability of employees to sue for damages claiming discrimination in employment because of disability. The author (and other commentators cited in the post), raises the fear that an enormous percentage of employees can now claim to be disabled.
I agree with that expression of concern but only up to a point. Clearly, the ADA was not meant to (or shouldn’t have been meant to) apply so generally that it becomes unreasonably burdensome to business, the economy (which doesn’t need another burden) and the courts. However, I would respectfully make two points in mitigation of that concern. First, we need to wait to see how courts will apply the amendments before we conclude that the ADA now applies so generally. Second, there may be some “lemonade” type opportunities hidden here. The second point requires elaboration.
I have seen comments on the ADAA (though citations are not at hand) indicating that Congress intended to shift ADA litigation from the issue of whether the plaintiff is disabled to the issue of whether the employer discriminated. My first thought on that point is that’s not good for employers. On the other hand, litigation over the definition of disability puts the scrutiny on the condition of the plaintiff while litigation over whether discrimination took place puts the scrutiny on the employer’s practices and procedures. The latter are within the employer’s control and the employer can do something about them before any litigation hits.
This blog takes the position that measures taken defensively to avoid litigation can have a positive effect on business performance. Internal review and voluntary improvements of selection procedures, training, performance evaluation and other practices can lead to improvements in the effectiveness of the same which can lead to better performance.
That’s the opportunity. We might consider the opportunity to have been forced on employers by passage of the ADAA (much as getting smaller was forced by the economy, as described in the Times article) but the business could end up stronger.
