Trouble is, employment provisions of the act, which many people view as its most important provisions, have never lived up to their potential for ensuring fairness, says Dr. Kathryn Moss. That’s because Congress has never funded the Equal Employment Opportunities Commission (EEOC) well enough to ensure that employers and others abide by the act, she says.
“Over the years, there have been some politics and some management problems at the EEOC, but by far the biggest problem has been money,” said Moss, research fellow at UNC’s Cecil G. Sheps Center for Health Services Research and senior research fellow at the School of Social Work’s Jordan Institute for Families. “The EEOC has had only one budget increase to speak of in the past 20 or so years.”
A study Moss led of the act, also known as the ADA, has just appeared in the latest issue of the Kansas Law Review.
Co-authors are Scott Burris, professor at Temple University’s Beasley School of Law and associate director of the Center for Law and the Public Health at Johns Hopkins and Georgetown universities; Michael Ullman, former research associate at the Sheps center; Dr. Matthew Johnsen, associate professor of psychiatry at the University of Massachusetts; and Dr. Jeffrey Swanson, associate professor of psychiatry at Duke University.
“Under Title 1, the employment provisions, of the ADA, if you feel you’ve been discriminated against by an employer because of a disability, you can file first a complaint and then a lawsuit,” Moss said. ”The Kansas Law Review article addresses the extent to which people benefit from filing complaints and factors affecting why people benefit.”
Moss and colleagues had access to all computerized data on complaints filed with the EEOC, which has enforcement responsibility for the act. They also visited 10 EEOC field offices, reviewed 782 files, interviewed more than 50 EEOC field office staff and interviewed Washington, D.C. EEOC officials several times. They also tapped data from state and local fair employment practice agencies’ records.
“What we found basically is that the EEOC has never been funded to do thorough investigations of each discrimination complaint,” Moss said. “The commission, which is responsible for other discrimination laws as well, wasn’t funded well enough in the first place, and when the ADA was passed, it got no additional resources.”
Since the mid-1990s, however, the commission has taken two positive steps to stretch its scarce resources, she said.
“First, it instituted a kind of triage system called the priority charge handing procedure, which involves interviewing for two to three hours people who want to file a charge and then dividing cases into three categories of the highest, medium and lowest priorities -- A, B and C,” Moss said. “As a result, that reduced the time it took to process ADA charges quite drastically, cut the backlog of cases and increased the percentage of cases believed to involve discrimination.”
Second, the EEOC instituted a mediation program that has made a big difference, she said. That program resulted in a huge percentage increase of complaints being settled by employers – 62.2 percent between Jan. 1 1999 and June 30, 2000.
One problem with the priority charge system the researchers identified was that complaints given medium priority too often are not investigated, Moss said.
“What they do with these medium priority charges usually is to send a pro forma letter to an employer saying there has been a charge and to ask the employer to respond to various points,” she said. “Then, more often than not, they take the word of the employer without a follow-up investigation.”
Cases in the highest priority category usually do result in a reasonable investigation, Moss and colleagues found.
“I think they also do pretty well in identifying charges that really are baseless,” she said. “It is the way and extent to which mid-level charges, which are the majority, are handled that is problematic. That’s because even if you have a case that is meritorious, if your cases is prioritized as “B,” you don’t have a very good shot of getting a benefit.”
Because of limited funding, complainants are overly dependent on which investigator gets their case and how their charge is prioritized, Moss said. Significant differences exist among investigators in the way they prioritize cases, and no system has ever existed for validating how the cases are initially rated.
“Still another big problem is that benefits vary considerably from one EEOC office to another,” she said.
Fifty-one such offices exist in 33 states and Puerto Rico. From the outset, the number of disability-related charges received by the EEOC far exceeded projections. Commission officials and staff were extremely helpful and cooperative during the study, Moss said.
The National Institute of Mental Health funded the research, which was originally designed to learn how people with psychiatric disabilities fare relative to people with other disabilities. The National Institute of Disability and Rehabilitation Research and the federal Center for Mental Health Services have also funded studies related to Moss’s research
Note: Moss can be reached at (919) 966-0601 or at Moss@mail.schsr.unc.edu.
Contact: David Williamson, (919) 962-8596
By DAVID WILLIAMSON
UNC News Services
Kansas Law Review