EEOC History: 1990 - 1999

Milestones: 1990

• In July, President George Bush signs into law the Americans with Disabilities Act of 1990 (ADA) -- the world's first comprehensive civil rights law for people with disabilities. The Act prohibits discrimination against people with disabilities in employment (Title I), in public services (Title II), in public accommodations (Title III) and in telecommunications (Title IV). EEOC is responsible for enforcing Title I's prohibition against discrimination against people with disabilities in employment. Title I does not become effective until two years after the President signs the bill (July 26, 1992). The ADA is described as the Emancipation Proclamation for the disability community.
• In October, Congress passes the Older Workers Benefit Protection Act of 1990 (OWBPA) overruling the Supreme Court's 1989 decision in Public Employees Retirement System of Ohio v. Betts. Betts held that the Age Discrimination in Employment Act (ADEA) does not forbid age discrimination in employee benefits except in rare circumstances. The OWBPA amends the ADEA to prohibit age discrimination in employee benefits and also establishes minimum standards for an employee's voluntary waiver of an ADEA claim.
• Congress passes the Age Discrimination Claims Assistance Amendments of 1990 (ADCAA II) providing Age Discrimination in Employment Act (ADEA) charging parties an additional 450 days in which to file their own private ADEA lawsuits. This Act permits EEOC to process the remaining backlog of age discrimination charges while preserving the rights of charging parties to later bring their own lawsuits.
• President George Bush designates Commissioner Evan J. Kemp, Jr. as EEOC Chairman.

  

• EEOC celebrates its twenty-fifth anniversary on July 2 by releasing an oral history on the Civil Rights Movement and the establishment of EEOC. The oral history is now kept in the National Archives.
• EEOC files 643 lawsuits, the most in its history. The most frequently alleged violations in EEOC lawsuits involve sex discrimination (29%), age discrimination (23%), retaliation (18%), race discrimination (16.7%), national origin (5%), religion (2%) and equal pay (3%).

Milestones: 1991

• Congress passes the Civil Rights Act of 1991 (CRA) thereby overruling several Supreme Court decisions rendered in the late 1980s that had made it more difficult for plaintiffs to prevail in their employment discrimination suits and to recover fees and costs when they won their lawsuits. The CRA amends procedurally and substantively Title VII, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act. The amendments provide for the first time that the parties can request jury trials and that successful plaintiffs can recover compensatory and punitive damages in intentional employment discrimination cases. The CRA also expands Title VII's protections to include Congressional and high level political appointees and eliminates the two and three year statute of limitations period for filing private lawsuits under the ADEA.
• The Supreme Court decides International Union, UAW v. Johnson Controls and addresses the issue of fetal hazards. In this case, the employer barred women of childbearing age from certain jobs due to potential harm that could occur to a fetus. The Court rules that the employer's restriction against fertile women performing "dangerous jobs" constitutes sex discrimination under Title VII. The Court further rules that the employer's fetal protection policy could be justified only if being able to bear children was a bona fide occupational qualification (BFOQ) for the job. The fact that the job posed risk to fertile women does not justify barring all fertile women from the position.
• The Supreme Court in Gilmer v. Interstate/Johnson Lane rules that an individual who has signed an agreement to arbitrate employment disputes with his or her employer cannot proceed with an Age Discrimination in Employment Act (ADEA) lawsuit in court but must instead submit the dispute to an arbitrator. This decision differs from the Court's earlier decision in Alexander v. Gardner-Denver, where the court held that an employee could proceed with a Title VII lawsuit even though the union which he belonged to had agreed in a collective bargaining agreement to submit discrimination disputes to arbitration.
• The Commission publishes proposed regulations and an interpretive appendix explaining the requirements of the Title I of the Americans with Disabilities Act (ADA) one year before the ADA is to become effective.
• AT&T Technologies agrees to pay $66 million, the largest recovery in the agency's history, as a result of an EEOC lawsuit. The Commission alleged AT&T discriminated on the basis of pregnancy by forcing employees to take leave before medically necessary and failing to guarantee a return to their position following pregnancy leave on the same basis as other temporary disabilities.
• Beginning early this year, Commission representatives testify at eight Congressional hearings over the next 15 months.
• Former EEOC Chairman Clarence Thomas is nominated by President George Bush to be an Associate Justice on the U.S. Supreme Court. As a result of issues raised in his confirmation hearings, the issue of sexual harassment becomes better understood by the public. The Senate confirms Thomas.

Milestones: 1992

• On July 26, Title I of the Americans with Disabilities Act (ADA) becomes effective. It is now unlawful for private employers with 25 or more employees to discriminate against individuals based on their disability. EEOC is responsible for enforcing Title I of the ADA.
• The Commission releases the Americans with Disabilities Act Technical Assistance Manual, a practical "how to do it" resource for workers with disabilities and for employers. The Commission provides nearly 200,000 copies free to the public, while the Government Printing Office sells an additional 20,000 copies.
• Congress passes the EEOC Education, Technical Assistance and Training Revolving Fund Act of 1992 enabling EEOC to provide technical assistance and materials to stakeholders. The fund is supported from payments received from the recipients of EEOC training.
• The Commission decides in Jackson v. Runyon that federal employees can secure compensatory damages in the EEO-Administrative process and need not file a federal lawsuit. The Commission reaffirms its decision when the respondent agency requests reconsideration.
• EEOC issues enforcement guidance on how to assess compensatory and punitive damages available as result of the Civil Rights Act of 1991.
• EEOC issues guidance stating that "testers" have standing to file charges under Title VII and therefore EEOC will investigate charges filed by "testers." Testers are individuals who pose as applicants for employment for the purpose of collecting evidence of unlawful employment discrimination. They "test" the possibility of securing a job although they have no intention of obtaining employment.

Milestones: 1993

• In St. Mary's Honor Center v. Hicks, the Supreme Court rules that the plaintiff in an employment discrimination case is not entitled to automatically win even if he establishes a prima facie case of discrimination and demonstrates that all of the reasons advanced by the employer for the "challenged action" are false. The Supreme Court's decision means that even if the plaintiff can prove the employer's asserted defense is pretextual, than a finding of unlawful discrimination is not mandatory. A fact finder may still conclude that the employer's action is not discriminatory. The Commission had filed a brief as amicus curiae arguing, unsuccessfully, that prior Supreme Court cases established that once the plaintiff had shown that all of the employers reasons for the adverse employment actions are pretextual, then the plaintiff should automatically win.
• In Harris v. Forklift Systems, Inc., the Supreme Court rules that in a sexual harassment case, the plaintiff does not have to prove concrete psychological harm to establish a Title VII violation.
• EEOC pilots an Alternative Dispute Resolution (ADR) Program featuring mediation in four field offices (New Orleans, Houston, Philadelphia and Washington, D.C.). Contract and volunteer staff mediate 300 charges.
• In the first EEOC trial under the Americans with Disabilities Act, EEOC and Wessell v. AIC Security Investigation, LTD., the agency successfully proves that the defendant discharged the charging party because he had brain cancer, even though he had continued to perform the essential functions of his job satisfactorily. EEOC secures $220,000 in back pay and compensatory and punitive damages on behalf of the charging party.
• The Commission and the National Labor Relations Board's (NLRB) General Counsel sign a Memorandum of Understanding providing for coordination of issues arising under the Americans with Disabilities Act and the National Labor Relations Act (e.g., the duty to reasonably accommodate an individual with a disability versus an individual's seniority rights earned pursuant to a collective bargaining agreement).
• In the first full year of enforcement of Title I of the Americans with Disabilities Act (ADA), over 16,000 individuals file an ADA charge with EEOC. This is approximately eight times the number of Title VII charges filed in 1965, Title VII's first year in effect.
• EEOC publishes proposed guidance on workplace harassment under all bases covered by Title VII, including harassment based on religion. Over 100,000 individuals contact the agency expressing opposition to the proposed guidelines. In 1994, both Houses of Congress pass measures restricting EEOC from issuing guidelines on harassment that include religion as a basis.
• President Bill Clinton designates Commissioner Tony E. Gallegos as Acting Chairman of EEOC. Gallegos is the first Hispanic American to serve in this capacity.

Milestones: 1994

• Title I of the Americans with Disabilities Act extends to employers with 15 or more employees (between July 26, 1992 and July 26, 1994 only employers with 25 or more employees were covered). EEOC conducts outreach efforts to alert the public and media of this expanded coverage.
• The Commission approves contracting with state and local Fair Employment Practice Agencies (FEPAs) for the first time to process dual filed Americans with Disabilities Act charges. This eliminates the possibility that respondents will be subject to two different investigations when a charging party files a disability charge with a FEPA and/or EEOC.
• EEOC issues comprehensive guidance on disability-related pre-employment inquiries and medical exams explaining what is lawful to ask applicants seeking employment. Unlike other statutes which EEOC enforces, the Americans with Disabilities Act explicitly prohibits certain types of questions and examinations before an employer makes a conditional job offer to an applicant.
• Over 91,000 charges are filed with EEOC, the most in its history, and as a result EEOC's inventory of charges awaiting investigation rises to approximately 100,000.
• In only its second full year of enforcement, disability related charges constitute 20.7 percent of all charges filed with the agency.
• President Bill Clinton nominates and the Senate confirms Gilbert F. Casellas to be the first Hispanic American Chairman of EEOC. Casellas, like EEOC's second Chairman, Stephen Shulman, twenty years earlier, has most recently served as the General Counsel of the U.S. Air Force.

  

Milestones: 1995

• A unanimous Supreme Court in McKennon v. Nashville Banner Publishing Co., rejects the so called "after acquired evidence" doctrine applied by lower courts to bar a plaintiff from proving unlawful discrimination. Under the doctrine, employers after firing an employee or taking other adverse action, justify their actions by relying on evidence uncovered after the employee's termination which would have justified the termination. The Supreme Court rules that in such cases, the employer is still liable for having violated an anti-discrimination law but that the employee is not entitled to reinstatement or to back pay for the period after the employer learns of the misconduct.
• EEOC wins a religious discrimination case, EEOC v. Ilona of Hungary, Inc., which involved the termination of two women who were fired for taking Yom Kippur off from work. The employer refused to accommodate the religious beliefs of employees.
• The Commission approves changing the agency's private sector charge processing system from the one on one full investigation approach to a more strategic approach. The new approach -- priority charge processing -- allows early dismissal of charges in which the agency has no jurisdiction, and early dismissal of those charges which are self-defeating or unsupported. Charges where the initial evidence suggests a violation of law are prioritized. The Agency no longer investigates charges based on the filing date, nor will it insist on "full relief" in every case where a violation has been found. EEOC's backlog of approximately 112,000 charges begins to decline.
• For the first time, more individuals file charges alleging disability discrimination than discrimination on account of age.
• EEOC undertakes a new partnership with state and local Fair Employment Practice Agencies (FEPAs) designed to eliminate duplication of effort in charge processing and reducing unnecessary reporting requirements. EEOC and the FEPAs create a Joint Standing Committee that regularly reviews programs and jointly resolves issues of mutual interest.
• Between November 1995 and January 1996, the Federal Government is twice shut down for several days when Congress and the President do not agree on the federal budget. EEOC offices across the country are officially closed, but are staffed by volunteers to accept charges and counsel members of the public.

Milestones: 1996

• Congress passes the Age Discrimination in Employment Amendments of 1996 which permanently reinstate an exemption that permits state and local governments to use age as a basis for hiring and retiring law enforcement officers and firefighters.
• The Supreme Court in O'Connor v. Consolidated Coin Caterers Corp. rules that to show unlawful discrimination under the Age Discrimination in Employment Act, a discharged plaintiff does not have to show that he or she was replaced by someone outside the protected age group (that is under age 40).
• As part of the Reinventing Government Initiative, Vice President Al Gore awards EEOC two separate "hammer awards" -- one is for the agency's effective nationwide labor-management partnership efforts, and the other is for EEOC's Blue Pages Project, an initiative to distribute information to the public on fair employment laws.

  

• The Commission adopts a National Enforcement Plan (NEP) which articulates a three pronged approach to enforcing federal anti-discrimination laws. EEOC is to: (1) promote the prevention of discrimination through outreach and education; and (2) promote the resolution of disputes through various voluntary methods including mediation; and (3) if voluntary resolution fails, resort to strong enforcement including litigation where appropriate. Field offices establish Local Enforcement Plans (LEPs) in each local jurisdiction guided by these priorities.
• EEOC tries several lawsuits before juries. Among the notable victories is a case, EEOC v. Wal Mart, where a jury agrees with EEOC that the employer violated the Americans with Disabilities Act when it refused to hire an applicant who uses a wheel chair.

Milestones: 1997

• A unanimous Supreme Court in Robinson v. Shell Oil adopts EEOC's position (advanced as amicus curiae) that the Title VII prohibition against retaliation protects former as well as current employees.
• The Supreme Court in Walters and EEOC v. Metropolitan Educational Enterprises approves EEOC's "payroll method" of counting employees to determine if an employer has the requisite number of employees to be subject to Title VII coverage.
• EEOC resolves a lawsuit against Publix Super Markets where the agency had alleged that the company discriminated against women in job assignments and promotions. EEOC secures future promotional opportunities for women and $63.5 million in back pay to current and former female employees in four southern states.
• EEOC settles a lawsuit against Martin Marietta Corporation for age based layoffs. The company agrees to rehire 450 claimants who had been unlawfully laid off and pays $13 million to approximately 2,000 claimants.
• EEOC issues a policy guidance stating that employer-employee agreements that mandate binding arbitration of discrimination claims as a condition of employment violate federal fair employment laws. EEOC issues this statement as an increasing number of employers are requiring as a condition of employment that applicants and employees give up their right to go to court on discrimination claims.
• EEOC for the first time in its history utilizes negotiated rulemaking and invites twenty experts representing management, labor and employees to negotiate and develop a rule on waivers of age discrimination claims related to retirement and severance benefits under the Older Workers Benefit Protection Act of 1990.
• EEOC issues guidance stating that an individual's right to file a charge with EEOC cannot be waived. Additionally the guidance makes clear an individual's right to testify, assist, or participate in an EEOC proceeding cannot be waived.
• EEOC creates a home page on the Internet to provide the public with greater access to information about the agency and the laws which it enforces. Addresses and phone numbers of field offices, the text of the laws enforced by the agency, enforcement guidance, fact sheets, press releases and the biographies of Commissioners and the General Counsel are placed on the home page. The address is http://www.eeoc.gov.
• EEOC resolves approximately 106,000 charges -- the most in any one year.

Milestones: 1998

• The Higher Education Amendments of 1998 are enacted amending the Age Discrimination in Employment Act to permit colleges and universities to offer special age-based retirement incentives for tenured faculty members at institutions of higher education; this amendment replaces the former temporary exemptions which permitted colleges and universities to mandatorily retire tenured faculty members at age 65 and later at age 70.
• The Supreme Court decides Bragdon v. Abbott, a Title III (public accommodations) Americans with Disabilities Act (ADA) case. The Court holds that an individual with asymptomatic HIV is an individual with a disability and therefore is protected by the ADA. Significantly, the Court finds that reproduction is a major life activity under the statute.
• The Supreme Court, in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, spells out the circumstances in which employers will be held liable for acts of sexual harassment carried out by their supervisory personnel. The Court rules that employers are liable when the sexual harassment has culminated in a tangible employment action directed against the harassed employee (i.e., employee is terminated or demoted after rejecting a supervisor's sexual advance). The Court further rules that employers are permitted to establish an affirmative defense to the claim, if it can show no tangible action was taken against the harassed employee and two additional elements: (1) the employer had communicated and established an effective procedure for employees to seek redress from sexual harassment; and (2) the harassed employee failed to take advantage of this procedure. If an employer can show all of these elements, then it will not be held responsible for the sexual harassment by its supervisory personnel.
• A unanimous Supreme Court rules in Oncale v. Sundowner Offshore Services that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. The Court reiterates that the plaintiff must prove that there was discrimination because of sex and that the harassment was severe.
• In Wright v. Universal Maritime Service Corp., the Supreme Court revisits the issue of whether a collective bargaining agreement providing for the mandatory arbitration of discrimination claims can bar individual charging parties from pursuing their EEO claims in federal court. The Supreme Court decides that the collective bargaining agreement at issue did not contain a clear and unmistakable waiver and therefore the charging party could pursue his employment discrimination claim in court.
• EEOC resolves two sexual harassment suits involving large classes of female victims. In EEOC v. Mitsubishi Motor Manufacturing of America, the company agrees to pay $34 million in monetary relief to a class of 300 to 400 female employees. EEOC's lawsuit had alleged that the company engaged in a pattern of sexual harassment and retaliated against female employees. In EEOC v. Astra USA, the agency alleged that Astra engaged in a continuous pattern of sexual harassment of its female employees. The company agreed to pay nearly $10 million to 80 to 100 female victims.
• The Department of Interior funds EEOC federal civil rights enforcement in the Commonwealth of Northern Mariana Islands (CNMI). The agency undertakes outreach efforts educating employers on their EEO responsibilities as well as educating workers on their rights. Individuals in the CNMI file 88 charges and EEOC issues reasonable cause determinations in twenty five of these matters in the first year of operation.
• EEOC Vice Chairman Paul M. Igasaki becomes Acting Chairman by operation of Title VII. He is the first Asian American to serve in this capacity.
• President Bill Clinton nominates and the Senate confirms Ida L. Castro to be Chairwoman of EEOC. Castro is the first Hispanic American woman to chair the agency. Prior to being named Chairwoman, Castro is the Acting Director of the Women's Bureau at the Department of Labor.

  

Milestones: 1999

• In the cases of Sutton v. United Airlines, Inc. and Murphy v. United Parcel Service, the Supreme Court holds that the question of an individual's disability requires evaluation of his or her impairment in its "mitigated" or corrected state. To be protected by the Americans with Disabilities Act (ADA), the individual must show that he or she is substantially limited in performing a major life activity even with the use of medications or assistive devices. As a practical matter, this means that individuals taking medications to offset the effects of a condition like diabetes or epilepsy may not be able to secure ADA protection if they cannot show that they were substantially impaired while in a mitigated state.
• In Cleveland v. Policy Management Systems Corp., the Supreme Court agrees with EEOC's position that a plaintiff can go forward with his or her Americans with Disabilities Act case despite having filed an earlier claim for disability under the Social Security Act alleging he or she is unable to work.
• In Gibson v. West, the Supreme Court endorses EEOC's position that it has the legal authority to require that federal agencies pay compensatory damages when EEOC has ruled during the administrative process that the federal agency has unlawfully discriminated in violation of Title VII.
• EEOC revises the federal regulations governing the federal sector EEO process (29 CFR Part 1614) to now permit EEOC administrative judges to issue decisions which are virtually final on federal complaints. EEOC also requires all federal agencies to establish an alternative dispute resolution program for federal employees with EEO complaints.
• EEOC resolves EEOC v. Tanimura & Antle, a class action sexual harassment lawsuit against one of the country's largest lettuce growers. In a consent decree, the defendant pays female farm workers nearly $3 million as a result of suffering sexual harassment and retaliation. This is EEOC's largest lawsuit against an agribusiness concern.

  

• In October, the Commission issues an Enforcement Guidance on Remedies Available to Undocumented Workers, explaining that undocumented workers are entitled to the same remedies available to all other workers for violations of laws enforced by the EEOC except in the limited circumstances where the award would conflict with the purposes of the immigration laws.
• EEOC adopts a Comprehensive Enforcement Program (CEP) to maximize the effective implementation of the National Enforcement Plan policies. Under the CEP all facets of the Commission's work are integrated, from outreach to the development of charges, resolution and litigation. In practical terms this means, for example, that attorneys will participate in investigations and investigators may assist at trials.
• District offices launch a National Mediation Program relying on mediators from alternative dispute firms, volunteer judges, lawyers, ADR professionals and EEOC's own staff trained in mediation. In its first year, the agency conducts approximately 6,000 successful mediations proving the program to be effective and much faster than the conventional charge process. EEOC has one of the largest mediation programs run by any one single organization.
• EEOC expands its outreach efforts by hosting a series of Commission meetings outside of Washington, D.C. to discuss persistent workplace problems such as low wage earners (Houston); national origin and language issues (Chicago) and wage discrimination (Philadelphia).
• EEOC implements a Small Business Initiative to improve customer service and expand education, outreach, and technical assistance to the mid and small business community. In each district office, an EEOC staffer is designated as the small business liaison to answer questions and to provide information to this group.

• The Commission's Office of Federal Operations collects a record $9.8 million in monetary benefits in addition to restored leave and other non-liquid benefits for federal employees who are the victims of discrimination.