HR Leadership Column

Time for Action

Talent-management programs require hiring managers and HR leaders to focus on skills and abilities, and ignore the irrelevant. That's why bias -- for whatever reason -- ultimately harms a company's bottom line as the most-qualified candidates are ignored in favor of nonproductive reasons.

Monday, July 12, 2010
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Twenty years ago this month, on July 26, 1990, I sat on the White House lawn and watched as President George H. Bush signed the Americans with Disabilities Act into law.

It was a typical summer day in Washington, with stifling heat and humidity. Many of the attendees had disabilities that could be made worse by the heat, but they stayed, waiting patiently for the President to arrive. They weren't going to miss this historic event.

After all, they'd been waiting almost 20 years since the Rehabilitation Act of 1973, which had only made it illegal for federal contractors to discriminate against people with disabilities. For other employers, there was no similar federal law, and while many companies adopted policies against such discrimination, there were no legal remedies for victims when policies were ignored.

I was happy to be sitting there in the heat, representing the Society for Human Resource Management, and supporting the new law. I knew the ADA wasn't perfect. We weren't able to get everything we wanted in the bill, and we knew that it would certainly lead to more employment litigation. But as Voltaire said, "the perfect is the enemy of the good." The final legislation wasn't perfect, but it was good.

These days, HR executives may get frustrated with the administrivia of the law, and the challenges presented by the fact that people with disabilities come in groups of one. But very few question its basic premise: that a qualified individual with a disability shouldn't be excluded from a job simply because of the disability.

This premise is also the foundation for great talent-management programs: Stay focused on the skills and abilities of candidates and ignore the irrelevant.

Just as it was time to enact the ADA 20 years ago to recognize that disability shouldn't be a job disqualifier, its time to enact the Employment Non-Discrimination Act -- and recognize that sexual orientation and transgender status shouldn't disqualify an otherwise qualified candidate.

ENDA isn't a new proposal; bills have been introduced in Congress since 1994. Twenty-one states and the District of Columbia have already made it illegal to discriminate based on sexual orientation, and 12 states and DC have made it illegal to discriminate based on gender identity.

And just as most major companies adopted policies stating they wouldn't discriminate against people with disabilities well before the ADA was enacted, growing numbers of companies have enacted policies protecting their lesbian, gay, bisexual and transgender employees.

As of September 2009, 434 (87 percent) of the Fortune 500 had implemented nondiscrimination policies that include sexual orientation, and 207 (41 percent) had policies that prohibit bias based on gender identity.

Again, these companies have recognized that a nondiscriminatory policy is the foundation of great talent-management programs: Stay focused on the skills and abilities of candidates and ignore the irrelevant.

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But it appears that perfection is once more the enemy of the good. Questions about exactly how the bill would be administered and enforced and an impending election have delayed what most assumed would be rapid enactment when this Congress convened last year.

Camille Olson, a labor law attorney with Seyfarth Shaw provided excellent testimony last fall to the House and Senate outlining some of the questions that should be addressed.

While I'm sympathetic to these concerns, and appreciate the notion that most HR executives aren't anxious for new laws providing for new ways to be sued, I'm more sympathetic to the argument that a person's sexual orientation and gender identity shouldn't be used as grounds to disqualify them from a job they are otherwise qualified for.

Without creating a legal right to protection against such discrimination, there's no remedy for the discrimination.

Some of my conservative friends will be aghast that I'm impatient for enactment of new labor legislation. But just as I was proud when the ADA was enacted, I'll be proud when ENDA becomes law. But it will only happen if we don't let perfection be the enemy of good.

Susan R. Meisinger, former president and CEO of the Society for Human Resource Management, is an author, speaker and consultant on human resource management. She is on the board of directors of the National Academy of Human Resources.

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