The 2000s: Charting a Course for the 21st Century

Introduction

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.