Wednesday, January 6, 2010

EEOC well armed and stepping up fight against disability bias

It’s clear that the US Equal Employment Opportunity Commission (EEOC) has stepped up its assault on disability discrimination. Litigation statistics for fiscal year (FY) 2009 reflect that 27 percent of the merits lawsuit filed by the federal agency alleged claims under the Americans with Disabilities Act (ADA). That’s more than double the 12.7 percent of merit suits alleging disability claims the year before. (These are my calculations based on the agency’s enforcement data.)

It’s true that the EEOC received a record number of disability discrimination charges in FY 2009. But the 21,451 ADA charges that were alleged represented 23 percent of total bias charges as compared to 20.4 percent the year before. Since ADA allegations have comprised between 18.9 and 22 percent of bias charges during the last decade, the increase in disability discrimination charges filed in FY 2009 is rather moderate.

On the other hand, since 1999, between 10 and 17 percent of merit suits filed by the EEOC have alleged ADA claims – the jump to 27 percent in FY 2009 can hardly be described as merely moderate. (These are also my calculations based on EEOC data.) Something’s afoot and it’s likely the ADA Amendments Act of 2008 (ADAAA).

The new law, effective January 1, 2009, rejected the holdings in several Supreme Court decisions and portions of EEOC’s ADA regulations that Congress believed construed the definition of “disability” too narrowly, preventing individuals with certain impairments from bringing discrimination claims. Under the ADAAA, it’s much easier for these individuals to establish that they are disabled within the meaning of the ADA.

On September 23, 2009, the EEOC published a proposed rule implementing the ADAAA. The comment period ended but the agency has yet to publish a final rule. During the 60-day comment period, the EEOC, in conjunction with the Department of Justice Civil Rights Division, held town hall meetings about its proposed regulations in Oakland, Philadelphia, Chicago and New Orleans. The federal agency has also issued a Q&A guide on its proposed rule.

Employers beware - armed with the ADAAA, the EEOC has already stepped up its campaign against disability bias.

1 comment:

  1. A visual history of EEOC charge statistics from 1997 to 2009 can be found here: bit.ly/56WmtL

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