Dubious Decision Drives Disability Dilemma

How do you reconcile a court decision that generally helps a concept you believe in, yet is something with which you fundamentally disagree?

That is my personal dilemma.

John Murray, an attorney with Wisconsin law firm Lindner & Marsack, yesterday made an article available to our readers concerning a decision in the Seventh Circuit Court which increases the obligation of employers to reassign disabled workers. Essentially the court determined in the case EEOC v. United Airlines, that employers must give disabled workers priority over more qualified candidates for open positions, assuming they have base qualifications and that other parameters of the ADA (reasonable accommodations/undue hardship) can be met.

On the surface, this decision plays well for a concept I have been promoting for the industry. I have been openly writing about changing the focus and mentality of our industry from one of "claim processing" to that of "recovery management". In this scenario, traditional claims departments would be better staffed, better trained and better empowered to manage the cases that come across their desks. The Recovery Counselors (formally adjusters) primary task would be to effectively manage treatment and return people where feasible to a functional, contributory position as quickly as possible. This attitude shift would need to be accompanied by a change in the way the industry presents itself to employers and the injured. In this paradigm, we are not here to "process your claim"; we are here to assist the recovering worker actually recover (whether they want to or not). I should also mention that in this scenario, the Recovery Management Division is not simply a "nuisance expense" for an insurance company. It is the front line in customer service, cost control and ultimate profitability.

I view this change as inevitable, if we are to effectively counter and control the growing disability mindset that will otherwise overwhelm not just our industry, but our nations social safety nets as well.

So you can see that the 7th Circuit decision plays well for what I promote. Employers reluctant to cooperate with return to work initiatives will now have a reason to change their approach. My problem, on a personal level, is that the decision itself galls me.

I have made no secret that I am a relatively conservative person. In reality, I identify far more with libertarian philosophies than anything else. I want to be part of a society where independence, hard work and ability are recognized and rewarded; not shunted aside in the name of fairness or some government decreed program designed to "level the playing field". At its very essence, this decision says "you cannot strive to be the best, rather merely settle for being fair” (except to the people who actually have earned a position or promotion). In a world where we are increasingly competing on a global scale, this is a recipe that leads to disaster. While the rest of the world puts their best and brightest forward and captures more market share, jobs and profit, we all get a ribbon for showing up.

Certainly people with disabilities have a place in the workforce. Obviously I openly advocate for their quick return to productive positions. Yet I want all of us to have a chance to be the best we can be. People are best served by being placed in positions that best suit their abilities and skills, not in positions for which they may not be the best qualified.

Well run, competitive and profitable companies striving to be their best create far more opportunities for all people, compared to mediocre counterparts forced to accept less than they could otherwise be.

We should be able to hire the most qualified people we can get. In cases where a person with a disability, with reasonable accommodations, is the best person for a particular job, hire them. Your company will be better for it. What I really want is for employers to recognize that returning their disabled to work is important for both them and their employees. People in productive roles live longer, healthier lives, and breaking the cycle of dependency is critical for our nation. The phrase “productive role” is the key. A person less suited for a particular position may not find themselves productive, or even happy in their position.

I would not have objected if the court advised preference to “equally qualified” candidates, where one happens to have an impairment. They did not do that. They said, when given the option, “you must take the less qualified”.

I do not wish to see a government directed decline in our ability to keep everyone successful and gainfully employed. However, this is a court decision, and I have no say in the matter. With that acknowledgement, I would suggest this is an excellent time to give the concept of “Recovery Management” a thorough and serious consideration.

And that is how I deal with my disability dilemma.