Senior writer Bill Leonard recently interviewed Equal Employment Opportunity Commission Chairwoman Cari M. Dominguez about the EEOC's mission and strategy.
HR Magazine: The Supreme Court recently has made some decisions that affect enforcement of the Americans with Disabilities Act (ADA). The Waffle House decision is one that affected the EEOC and the way it approaches cases. What has been the real impact of these court decisions?
Dominguez: In the Waffle House decision, the ADA was not the central issue to that case. The whole case revolves around whether EEOC can bring an enforcement action for the benefit of an individual who has previously entered into an arbitration arrangement or agreement with his or her employer. We all believe here at the commission that the decision reaffirms what we have thought all along and how we have operated here at the EEOC. Everyone within the commission believes that the EEOC's mission is broader than any one individual's concerns, and that we're truly protecting the public interest. And while there's a role for the arbitration agreements to play, there's a broader national role for the EEOC to intervene in those instances where it believes it has a broader role than any particular individual's interests and where it believes it can provide a benefit for a broader class level of individuals. So, the Supreme Court decision said: "Yes, there's a role for arbitration agreements, but at the same time there's an equally compelling and important role for the EEOC to serve the public interest."
HR Magazine: The court is now considering U.S. Airways vs. Barnett, which is a question of reasonable accommodation vs. seniority systems. Will this case have an effect on the way the EEOC operates?
Dominguez: We have not closely followed the Barnett case yet, but I think it's a question that we'll have to monitor carefully. The agency has always taken the position that seniority provisions in collective bargaining agreements must be modified to provide reassignment as a reasonable accommodation, as long as you would not unduly burden an employer's responsibility to and the expectations of other employees. So it's better to find balance. So we're not sure; we have to wait and see what the Supreme Court holds in that case. It could definitely change the way we do business.
HR Magazine: Did the Toyota decision narrow the focus of the EEOC's enforcement of the ADA?
Dominguez: We thought the press really overstated the decision and its impact as it relates to responsibilities of this agency. As I understand the case, it basically says that to demonstrate a substantial limitation in performing manual tasks, a plaintiff has to do more than just to show that she or he is limited in performing specialized tasks associated with a particular job. So, if you can brush your teeth, if you can get dressed, if you can do other things, but if you can't do some sort of manual job-specific [activity], it doesn't quite define you as disabled under the context of major life activity.
The EEOC's position always has been that you must demonstrate that you are substantially limited in one or more major life activities in order to be considered disabled, and not necessarily in performing one specific task, so there is a distinct difference.
HR Magazine: With older baby boomers reaching their mid-50s now, is the agency seeing a rise in the number of claims under the Age Discrimination in Employment Act (ADEA)?
Dominguez: In fact, we just put a bulletin into our 2001 report on litigation data about this issue. Yes the data clearly shows that there here has been an increase in age discrimination activity, and I'm sure it has a lot to do with the aging population. And with the recent recession, we've also seen a lot of downsizing and restructuring, and often we find that the older workers seem to be more adversely affected in those kinds of situations. So, we have also alerted employers they have to be watchful of that trend.
HR Magazine: In February during the Winter Olympic games, the EEOC broadcast a series of public service announcements called "Freedom to Compete." Was this a one-time deal for the Olympics, or is it an ongoing project for the commission?
Dominguez: The Freedom to Compete is an initiative that we had launched to highlight and put emphasis on the fact that the bulk of our charge activity comes from individuals who are hourly workers, primarily working in retail and manufacturing, that there is an issue that continues to affect people with disabilities, people of color and women as they progress along their career path and move into mid- and upper-level management. The United States has had great success with its free-market system, and we have evolved to become the global economic envy of the world. So just imagine what we can accomplish with a free workplace, where people really are allowed to succeed without prejudices or biases relating to gender or race or some other factors. The Freedom to Compete initiative is boiling the message of all of our anti-discrimination laws down to a very simple core message, which is: "Just give people the opportunity, and they will succeed."
We are asking employers to take a look at their practices and their decision processes and make sure that they're free of barriers that can obstruct the advancement of individuals. Along with PSAs [public service announcements], we also will be doing roundtable discussions that will examine how we can work in a cooperative, proactive way with employers, with employees and professional associations to address the areas and issues that we need to work on and improve.
The initiative will be an ongoing project, and it will be a combination of things such as roundtable discussions, research, press releases and a recognition program that ties it into best practices. We'll try to find employers really using some wonderful practices, and hopefully the agency can serve as a clearinghouse of those practices.