The U.S. Equal Employment Opportunity Commission (EEOC) was established by the Civil Rights Act of 1964, Title VII, with a mission of eradicating discrimination in the workplace. EEOC is charged with the enforcement of a number of civil rights laws dedicated in whole or in part to the elimination of workplace discrimination in America. These include Title VII of the Civil Rights Act; the Equal Pay Act of 1963; the Age Discrimination in Employment Act of 1967 (ADEA): The Rehabilitation Act of 1973, Sections 501 and 505; the Civil Rights Act of 1991; and Titles I and V of the Americans with Disabilities Act of 1990 (ADA).
The ADA requires, in brief, that all personnel actions must be unrelated to the existence of or consequence of disability. The National EEOC ADA Research Project (Project) maintains a database of 369,231 allegations of workplace discrimination under the ADA. These allegations represent 100% of the population of interest to the Project and do not include charges of retaliation or charges which are investigated by various state Fair Employment Practices Agencies. Allegations in the Project database may involve one of 41 distinct personnel issues. In the interest of parsimony, however, Project researchers have limited this investigation to the following most prevalent workplace allegations:
Most Prevalent Workplace Allegations:
Hiring: 19,527 (Failure or refusal by an employer to engage a person as an employee.)
Discharge: 119,039 (Involuntary termination of employment statues on a permanent basis.)
Constructive discharge: 8,869 (Employee is forced to quit or resign because of the employer’s discriminatory restrictions, constraints, or intolerable working conditions.)
Reasonable accommodation: 65,624 (Failure to provide reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability)
Disability harassment/ intimidation: 33,654 (Bothering, tormenting, troubling, ridiculing, or coercing a person because of disability.)
Terms/conditions of employment: 32,494 Denial or inequitable application of rules relating to general working conditions or the job environment and employment privileges which cannot be reduced to monetary value.
Allegations, Merit Resolutions and Non-Merit Resolutions
An allegation is the Charging Party’s perception of discrimination, but a Merit Resolution is one in which the EEOC has determined that a discriminatory event did indeed occur. A Non-Merit Resolution is an allegation that is closed due to a technicality or lacks sufficient evidence to conclude that discrimination occurred. Merit favors the Charging Party; Non-Merit favors the Employer.
A causal comparative study of the Merit Resolution rate for allegations of Hiring discrimination that were filed with the U.S. Equal Employment Opportunity Commission (EEOC) under Title I of the Americans with Disabilities Act (ADA) between 1992 and 2005 was conducted by McMahon, et al and published in the Journal of Occupational Rehabilitation in 2008. Hiring allegations were compared and contrasted to 259,680 allegations aggregated from six other prevalent forms of discrimination including Discharge and Constructive Discharge, Reasonable Accommodation, Disability Harassment and Intimidation, and Terms and Conditions of Employment.
Conclusions of the McMahon Study
As with all issues involved in workplace discrimination, the Resolution of allegations tends to favor the Employer, especially when administrative closures are classified as Non-Merit Resolution closures, as occurs in the Project. (It is worth noting that the Merit Resolution rate under the ADA is similar to that for protected classes under the Civil Rights Act.) With respect to the first research question, the overall Merit Resolution rate for Hiring of 0.260 is 26% higher for Hiring than for other prevalent forms of discrimination (0.206). This magnitude of difference is both statistically and practically significant. Described in terms of odds ratios, it indicates that a Hiring allegation is 1.26 times more likely to be meritorious than an allegation involving other prevalent discrimination issues. This also suggests that the hiring process is more transparent than historically believed. From the business perspective, employers are at greater risk for an unsuccessful outcome when the issue is Hiring.
With respect to the second research question involving subcategories of Merit Resolution and Non-Merit Resolution closures, employers are less likely to settle claims of Hiring discrimination without mediation. Employers are also less likely to accept the remedies recommended by the EEOC when hiring discrimination has been determined.
Naturally, employers favor Non-Merit Resolution closures. An examination of these subcategories reveals that employers are less likely to be involved with administrative closures (technicalities) involving Hiring, but more likely to prevail in these subcategories than when Non-Hiring issues are involved. Most important, the frequency of Employer vindications (no reasonable cause) is lower on Hiring issues by a margin of 0.589–0.675%, a substantial difference of 8.6%. Again, this demonstrates that employers who believe it is more difficult for charging parties to prove an allegation of hiring discrimination are very wrong.
To some extent, these findings provide comfort both to employers and to providers of training and technical assistance regarding the ADA. First, the level of complaint activity under the ADA related to Hiring is very modest, with less than 1,500 allegations processed by the EEOC each year. By any measure, all projections of a ‘‘flood of allegations’’ related to Hiring around the enactment of the ADA were, to be kind, hysterical. But note should be taken that hiring is far more transparent than it was decades ago, and when Hiring allegations are brought under the ADA they have a tendency to ‘‘stick’’ at a higher rate than for other employment actions.
In summary, as graduation rates increase for high school and college students with disabilities, and as imminent worker shortages unfold, more applicants with disabilities will be forthcoming. Employers would do well to maintain a focus on abilities and qualifications, and give thorough consideration to reasonable accommodations when necessary to expedite worker-job fit.
McMahon, B, Hurley, J., West, S., Chan, F., Roessler, R., Rumrill, P., A Comparison of EEOC Closures Involving Hiring Versus Other Prevalent Discrimination Issues Under the Americans with Disabilities Act Journal of Occupational Rehabilitation · J Occup Rehabil, July 2008
McMahon B. Workplace discrimination against Americans with disabilities. Richmond, VA: Virginia Commonwealth University, Rehabilitation Research and Training Center on Workplace Supports and Job Retention, 2006.