Comments on EEOC Enforcement Priorities

By Associate Dean Michael Waterstone

The Equal Employment Opportunity Commission recently approved a Strategic Plan for Years 2012-2016. This is an important document. The EEOC is the primary federal enforcement agency for the nation's employment laws, with responsibility for the Americans with Disabilities Act, Title VII, the Age Discrimination in Employment Act, and the Genetic Information Nondisclosure Act, amongst others. The Strategic Plan sets enforcement priorities for the EEOC. The EEOC invited input on what the EEOC's national priorities should be for the next three years to have the greatest impact in combating discrimination in the workplace; and recommendations for improving enforcement, outreach and prevention, and customer service.

I submitted these comments, suggesting that the EEOC emphasize failure-to-hire claims in the disability discrimination context. This type of discrimination is the hardest to prove, and these are the hardest cases for the private bar to bring. Yet all evidence suggests this type of discrimination is still happening and limiting the employment opportunities of diverse categories of people with disabilities. Specifically, I advocate that the EEOC should identify cases where employers appear to have a pattern of not hiring employees with disabilities, and that the EEOC consider a testing strategy to ferret out this discrimination, a method which has proven effective in other civil rights contexts.