Unfunded Mandate: An Empirical Study of the Implementation of the Americans with Disabilities Act by the Equal Employment Opportunity Commission

In the decade following its passage, more than 200,000 employment discrimination complaints were filed under the Americans with Disabilities Act (ADA). This Article presents the findings of an empirical investigation of the implementation of the ADA by the U.S. Equal Employment Opportunity Commission (EEOC) and state and local fair employment practices agencies (FEPAs). Although not as well-covered in the press as ADA litigation, or as debated in the law reviews, these administrative agencies dispose of the vast majority of ADA employment discrimination cases, which must be filed with the agency as a precondition to any later court litigation. Because the EEOC also administers other basic federal antidiscrimination statutes B including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Equal Pay Act, and Section 501 of the Rehabilitation Act of 1973 B our findings shed important light on the entire enterprise of the enforcement of federal employment discrimination legislation. The article proceeds as follows. Part II is a brief history of the EEOC, describing the transformation of the agency from its creation in 1964 to the present. Our sources of data, and their major limitations, are described in Part III. We provide a basic statistical portrait of the ADA work of the EEOC and FEPAs in Part IV. In Part V, we discuss the factors that are influencing the outcomes of the EEOC process, using a model drawn from policy implementation studies and the results of statistical analyses of our data. Congress passed the ADA with grand promises about the employment of people with disabilities. We conclude that the EEOC simply cannot keep those promises without the resources to do a reasonable investigation of every charge that is not obviously groundless. The ultimate responsibility, and the onus for action, lie on Congress, which has given the EEOC a broad mandate to process employment cases and enforce fair employment laws without ever giving it the resources it would need to do the job properly. Simple fairness to workers and employers alike requires that Congress give the EEOC enough money to properly investigate its charges. Short of that, Congress needs to change the procedures under the Civil Rights Act to allow individuals to drop out of the administrative process sooner, or bypass it altogether.