Addressing Inequities in the Workplace: The Promise of Equal Opportunity

by Jacqueline A. Berrien

From the Editor: The final panelist was Jacqueline Berrien, chair of the United States Equal Employment Opportunity Commission. This is what she said:

Good morning, NFB. I have to say that I get many speaking invitations. I’ve been privileged to get speaking invitations throughout my career, but there is nothing like a convention--the energy, the enthusiasm, the commitment, when people who work on issues across the country have the opportunity to come together in one place at one time, is really exciting. As you heard, before I became chair of the EEOC, I spent more than two decades working in a range of organizations. I worked for the American Civil Liberties Union in the Women’s Rights Program and national legal program. I worked with lawyers to make civil rights into law. But I spent more than half my career working for the NAACP Legal Defense and Education Fund. In that context I had the opportunity many times to attend the NAACP’s annual convention, which, like this one, is such an exciting opportunity to share even briefly with people who are doing the important work across the country of activism, organizing, and advocacy in support of human rights and civil rights and advancement of human rights and civil rights.

So I want to start by saying congratulations and thank you to all of you for being present today. Thank you, President Maurer. Thank you to Kristian Kuhnke, to all the staff and volunteers of NFB, who have invited and welcomed me so warmly to this event. This is my first time attending an NFB convention, and I am really delighted to be here. I’ll say that’s true professionally, but it’s also true personally. I think the professional aspect is obvious—among the laws that the EEOC enforces is the Americans with Disabilities Act. Clearly it is part of my charge as the chair of the EEOC to work on behalf of the interests, the membership, the constituency of NFB to promote workplace equality for all workers across the country.

But personally it’s also a privilege to be here because, as I traveled here and stand here and throughout my time here, I feel a very strong presence. My maternal grandmother, my mother’s mother, died not long after I was born. Unfortunately I don’t have any memory of her myself. What I know of her is what I’ve seen in a few pictures and what I’ve heard over the years from my mother. One of the things that I do know was a very important thing about her was the fact that as an adult she was diagnosed with diabetes. Unfortunately, as a poor black woman who lived in a small town in rural Kentucky, she didn’t have access to preventive health care, so her diagnosis came at a very late stage in the disease. Not long after her diagnosis she developed many complications, and one was the loss of her vision.

So I can’t tell you whether my grandmother ever had the chance to see me when I was an infant, but I do know that I very much feel her presence with me as I stand here today, and as I carry out my work. One of the many things that has touched me throughout my life and inspired, encouraged, and preserved the work that I have committed my life to in advancing civil and human rights in many different forums is that memory, that knowledge, the awareness of some of the challenges she faced, not only because of her race, not only because of her sex, not only because of her lack of wealth in the rural South in the pre-civil rights era, but also because of her blindness. She did not have the opportunity that I do to be with you here at the NFB, so I am glad that I am able to stand before you and with you today with her in my spirit. So thank you. [Applause]

I also want to acknowledge Assistant Secretary Martinez from the Department of Labor and, I’m not sure if he’s with us yet, but Sam Bagenstos from the Department of Justice. As Assistant Secretary Martinez said, we occasionally get out of Washington. Well, for me it’s turning out to be quite frequent; it is a very important part of what I do. But I do also have an opportunity to work in Washington with colleagues from the Department of Labor and the Department of Justice, all of whom are tremendous allies in the work of the EEOC, so I am delighted to share part of this day with them as well. And I certainly want to acknowledge the EEOC presence today: Millie Rivera-Rau, who is with us in the front row, I know is no stranger to you at NFB and is a critical part of our staff in the Office of Federal Operations. And in absentia I bring greetings from Chris Kuczynski, also well known to you in NFB. He was not able to make it, but I recently went to a meeting of our state and local fair employment practices agencies, and I got a standard introduction, but the person who introduced Chris ended by saying, “He is the rock star of the EEOC.” So we are very, very privileged to have staff like Millie and Chris, who contribute to our work in many respects.

Finally, I want briefly to acknowledge Governor Paterson. Before I went to Washington, I lived twenty-three years in New York, so I was his constituent when he was serving as governor. My husband and I have had the privilege to have the opportunity to get to know and to work with him over the years. There’s something you won’t see in his bio that I think is a profound testament to who he is and the fact that he not only talks the talk, but he truly walks the walk. About ten years after I finished law school, my law school roommate, who is now a professor of law at Northeastern University, developed diabetes and lost her sight as a complication. As she was making the transition--she had practiced law for ten years and worked as an advocate with sight--she had to begin to make the transition to practicing law now with limited vision. Governor Paterson immediately came to mind, and I asked her if she would mind if I reached out to him to see if he might talk with her about how he had been able to practice law, how he had been able to use his legal education and what kinds of adaptations and assistive devices might be available. I reached out to him. He immediately agreed to do it. To this day--and I saw her, Hope Lewis, about two months ago--she not only remembers it, but appreciates that immediate response. So Governor, I hope I have not embarrassed you in sharing that, but I think it’s important for people to know it’s not just the things that make it into your résumé that matter, it’s the work you do, very quietly at times, that is truly a testament to your commitment to the principles and values of the NFB.

I am a biography buff, and I thoroughly enjoyed reading about the life of NFB founder Jacobus tenBroek in preparation for this convention. I noticed that one of the authors who wrote about Dr. tenBroek said that, to her as a member of the NFB, his work as a pioneer in the disability rights movement was well known, but she knew less about his legal scholarship. The interesting thing for me is that, because of my background and work as a civil and Constitutional rights lawyer, I had just the opposite appreciation for Dr. tenBroek’s contributions. I knew very well that some of his work and legal scholarship had contributed to part of the architecture of the cases and briefs that led to the Supreme Court’s decision in Brown vs. Board of Education. And I knew that through his legal scholarship he challenged the Supreme Court’s initial endorsement of the internment of Japanese-American citizens during World War II.

So, when I think about that and now have the privilege because of this opportunity to learn more about his life of activism, his founding NFB, his vision for what NFB would become and what the disability rights movement would become, I think he is truly an example of a person who lived a life that demonstrates the truth of what Dr. Martin Luther King called the “inescapable web of mutuality.” Like other giants of his generation, people like Bayard Ruston, Dr. Dorothy Height, and we could name many others, he challenged injustice on multiple fronts, and he must truly be defined as the human rights activist and leader whose work and whose scholarship and whose leadership continue to inform and guide many, many movements in this country. So I am really delighted to know more about his work in the NFB. I hope that someone will soon write a book about his life because certainly the pieces that I have learned through your Website and publications were fascinating. I had a hard time putting it down when I was preparing.

Let me say something about what the EEOC is doing and particularly issues--I don’t want to say issues that will be of particular interest, because, just as Dr. tenBroek’s life teaches us, human rights cross boundaries--human rights and the human-rights framework do not look at just one aspect of identity. Everyone here has multiple aspects of identity and may therefore be subject to multiple forms of discrimination in the workplace and in other settings. My work has always focused on issues of rights from a coalition perspective, appreciating, as Dr. King said, “An injustice anywhere is a threat to justice everywhere.” As chair of the EEOC in this first year we have recognized that there are multiple aspects of our work that may touch on anyone in the workplace. Certainly we have done some significant things concerning the enforcement of the Americans with Disabilities Act and the Americans with Disabilities Amendments Act. If I had been standing here this time last year, I could not have said this--the first one to say that we have implemented final regulations implementing the Americans with Disabilities Amendments Act. [Applause]

That was long awaited, I know. That was one of the first orders of business for the commission, which, as you may know, was without a quorum for some time and could not take action on important regulations until the recess appointment and then eventual confirmation of three new commissioners last year. We took up the unfinished and long-delayed regulatory business, and we all recognize that one of those issues was to pass final regulations implementing the very, very important legislation, the Americans with Disabilities Amendments Act. We also passed regulations that for the first time implemented the Genetic Information Nondiscrimination Act, all within our first year of service. We have returned to a regular schedule of commission meetings focused on examining and addressing emerging issues of workplace discrimination or that may require further action or guidance from the commission so that workers and employers understand fully the laws that we enforce, and what they require. So in the past year the commission has held meetings on a range of topics, some of them directly related to Americans with Disabilities Act enforcement, but others not directly related. We have nevertheless made sure that the testimony received and the records that we have built before us as a commission have addressed the impact of different practices by employers or different policies or different sorts of treatment in the workplace--how those policies, practices, and types of treatment may impact all workers, including workers with disabilities of all kinds.

So, for example, in February the commission held the first-ever meeting on an emerging practice by employers: advertisements and other efforts to exclude unemployed people from pools of job applicants. I will say that again. I think sometimes people believe they didn’t hear that right. We learned in the past year that some businesses, some search firms, some search engines, some online sites were posting ads that specified that unemployed people should not apply or that only currently employed people should apply or that only recently unemployed people should apply. After we received these reports and took a closer look, we wanted to get a better sense of whether this was an isolated or recurrent practice; then we began to assemble a panel of witnesses who could help to inform the commission about, not only the prevalence of the practice, but also the impact of the practice. And we heard from representatives of the groups that were immediately identified as possibly affected in a disproportionate way by this practice. Many people know that the unemployment rate for African Americans, for example, is substantially higher than the unemployment rate overall. But we also recognized that that practice had the potential to discriminate against people who might have been absent from or taken voluntarily from work in order to assume caregiving responsibilities, child-rearing responsibilities, or for medical leave purposes.

We heard testimony about disabled workers as well. We heard testimony about the impact on women workers as well, and we’ve been able to explore and to consider how the practice would affect workers with disabilities or their caregivers. We have worked closely with the Office of Personnel Management to address the issue of discrimination in the federal workplace and to ensure that eliminating more and more barriers to the full employment of people with disabilities, including people with targeted disabilities, advances as President Obama’s executive order requires all of the federal government to do. You know that Millie Rivera is a tremendous resource from our agency on these issues.

We’re working closely with the Department of Labor and Department of Justice in enforcing laws that prohibit pay discrimination, and particularly we’re part of the national Equal Pay Enforcement Task Force in working very closely with our federal government partners on those issues. We work with our state and local Fair Employment Practice Agency partners on a very broad range of issues, including enforcement of laws that prohibit discrimination on the basis of disability. Significantly, just this week the agency entered a settlement with Verizon. It is the largest settlement in the history of the agency in an ADA case. We settled for 20 million dollars on behalf of employees who were terminated or disciplined when they took leave for medical reasons.

We are busy. We have an active and broad agenda. I’ve been able to touch on only a tiny bit of it this morning, but the most important message I want to leave you with is: the EEOC is excited about what the next years hold because we have done much to advance the promise of equal employment opportunity in our first forty-five years of existence, but we know that the work is unfinished. We know that the agenda is still full. We know that there is still much to do, and I am excited that the National Federation of the Blind is one of our partners, is one of our allies, and one of our very, very important sources of information and support in the field as we carry out that work. So I look forward to spending some time with you and your leadership today, and I trust that in and through my tenure I will have more opportunities to work with you as we advance the promise of equal employment opportunities across the nation. Thank you. [Applause]