The 2000s: Charting a Course for the 21st Century
Introduction
Chairwoman Ida L. Castro shares some final thoughts about the
EEOC, its mission and its priorities in 2000. Also, members of the
Commission speak about some of those priorities. |
Anniversaries invite both reflection on past accomplishments, as
well as resolutions and predictions for the future. In terms of
accomplishments, the Commission can take great pride in its
contributions to broadening job opportunities for minorities,
women, people with disabilities, older workers, and generally all
individuals protected by the agency's statutes. No longer can EEOC
be labeled a "toothless tiger." Rather, the Commission has played
and will continue to play a key role in developing the laws and
policies which have been instrumental in eliminating barriers that
prevent equal employment opportunities for individuals. Through its
enforcement, litigation, education, and outreach activities, the
Commission has obtained relief for millions of victims of
discrimination, and has helped to educate both employees and
employers on their rights and responsibilities under the law. By
carefully articulating its interpretations of the
anti-discrimination laws, the Commission has influenced the
decisions of the Supreme Court and the lower courts.
Although EEOC has made many significant strides in combating
employment discrimination, many challenges remain. Indeed, the
agency's single-minded mission of achieving equal opportunity in
the workplace for all workers remains elusive. The Commission
continues to receive charges of discrimination in record numbers.
Charges of race discrimination have increased every single decade
since Title VII was passed. Sexual harassment charges almost
tripled in the 1990s when compared with the previous decade. An
area of increasing concern to any enforcement agency that relies,
as EEOC primarily does, on charge filing are the number of
allegations of retaliation. Retaliation charges have themselves
increased steadily every decade, and represented almost 20 percent
of all charges filed in the 1990s. Retaliation is often overt, such
as by ostracizing or transferring employees who have complained. It
can also take the form of the filing of collateral lawsuits (such
as a libel suits) against the charging party by a charged employer
or union, or of improperly requiring the arbitration of statutory
rights. Combating retaliation for exercising rights under the
anti-discrimination laws is of the utmost importance to the
Commission since retaliation strikes at the heart of its mission,
and if undeterred, can severely hinder EEOC's ability to eliminate
discrimination in the workplace.
Moreover, the Commission has witnessed a very disturbing trend
in the number of charges involving egregious discrimination. Many
of these charges involve low wage earners, particularly women and
African Americans, and immigrants and their descendants arguably
the most vulnerable workers in America. Below is a sampling of the
types of egregious discrimination charges which EEOC received in
1999 or is currently litigating:
- Black employees were intimidated and harassed on a daily basis,
subjected to the use of racial epithets by co-workers and managers,
and threatened with hangman's nooses on the job. Twenty lawsuits
alleging this same scenario have been either filed or resolved
recently by the Commission.
- Twenty-two women all recent immigrants from Central America who
spoke limited English were employed at a food processing plant. The
women were subjected to unwelcome groping and requests for sexual
favors by male managers and co-workers for several years. One woman
was locked in a freezer by her supervisor after she turned down his
request for sexual favors. Two women who were pregnant at the time
were demoted and eventually fired when they refused to comply with
the sexual advances. Other women were given menial or difficult
work assignments in retaliation for rejecting requests for sexual
favors by plant managers.
- Applicants were denied employment opportunities by a temporary
staffing agency in Detroit, which routinely acceded to employers'
requests not to refer "Detroit residents" a code the agency used to
identify black applicants, individuals with accents, and females.
EEOC recently won a preliminary injunction to block this unlawful
screening policy.
- A class of approximately 20 applicants and employees were
denied employment opportunities by the owner and publisher of a
secular daily newspaper company who used the newspaper as a means
of promoting his religious beliefs. To this end, the charged
employer prayed with employees during work hours, questioned
individuals about their religious beliefs, disciplined and
discharged employees because of religious differences, and
otherwise imposed his religious views on applicants and
employees.
As the illustrations demonstrate, egregious acts of workplace
discrimination normally associated with the 1960s appear to be on
the rise.
Another challenge for EEOC is that the nature of the workplace
has changed dramatically. Women and minorities comprise an ever
increasing percentage of the workforce. Part-time, temporary and
contingent employment have flourished, and offer their own
challenge. As a result of these changes, the Commission is now
confronting new types of charges, many involving the intersection
of two or more bases, such as race discrimination and sexual
harassment. Since the workplace is merely a microcosm of society
reflecting its advances and shortcomings the changing demographics
of the nation are having a major impact on the workplaces of
America. For example, EEOC's outreach and technical assistance
activities reveal that discrimination related to national origin,
such as accent discrimination and restrictions on languages that
can be spoken in the workplace, may be widespread.
The complex employment discrimination issues addressed
throughout the 35 year history of Commission and court activity
have not reduced the number of legal questions still posed by the
laws or made the answers easier to find. For each decision or
clarification, new and equally perplexing issues have arisen to
take its place. This premise is no better demonstrated that in the
area of disability law. On June 26, 2000, scientists announced the
mapping of the human genome. That development in biological
knowledge may auger wonderful things for the future of disease
treatment and prevention, but it also underscores the complexity of
the questions yet to be confronted under the laws EEOC enforces.
Less than a month after this historic announcement, the Commission
issued guidance interpreting Executive Order 13145, passed on
February 6, 2000, which prohibits discrimination in federal
employment based on protected genetic information. In any event,
discrimination on the basis of genetic disposition is yet another
example of an area that, when Griggs and McDonnell Douglas were
being decided, was not a concern under the discrimination laws.
Soon, it is likely that courts and EEOC will have to grapple with
whether the ADA protects individuals whose genetic markers support
a conclusion that they are at increased risk for injury, disease,
or death. To what extent will an employer be able to learn about an
employee's genetic makeup, and having done so, to what extent may
those characteristics be factored into employment decisions?
Indeed, even seemingly settled areas of discrimination law
often require revisiting and retooling as illustrated in the
modifications in the law that brought about the Civil Rights Act of
1991. That point is further brought home by the Supreme Court's
recent decision in Kimel v. Florida Board of Regents (2000). That
decision invalidated as unconstitutional provisions of the ADEA
that had been in effect since 1974 and that permitted employees of
states to sue for age discrimination. The effect of Kimel is
effectively to make EEOC the only entity that can sue state
governments for age discrimination in federal court. The Commission
anticipates that this will increase pressure on EEOC by these
otherwise disenfranchised applicants and employees. Indeed, it is
possible that the Court's reasoning may be applicable to other
statutes, such as the ADA or the EPA. Without a successful
legislative or constitutional fix, the Commission will have to
grapple with deciding what obligations it has under these new
circumstances.
Technology, including electronic mail and the use of the
Internet, may also change the playing field, as more workers
telecommute or otherwise function in cyberspace.
Thirty-five years of experience has given EEOC perspective. It
has learned that it must and can adapt its practices and policies
to meet the challenges brought about by the competing demands of
workers and employers in the changing workplace. Because the forces
that affect EEOC are always changing from legislative and judicial
challenges to the agency's authority and responsibility, to the
differing philosophies of those appointed to be commissioners, to
the tensions between budget and workload, and between an employer's
legitimate needs and an employee's rights under certain statutes
the Commission must constantly stay in motion and on the cutting
edge.
EEOC enters the new Millennium no longer a neophyte government
agency. It will continue to combine the wisdom garnered by 35 years
of hard work and careful consideration with the energy that comes
from new challenges to perform the statutory mandate that is its
driving force. Discrimination has no place in American society, and
especially not in the workplace. Its elimination will always be the
compass that directs the Commission's actions as EEOC charts its
course for the 21st century.
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