The Truth is Out There: Revamping Federal Antidiscrimination Enforcement for the 21st Century

Marcia L. McCormick, St. Louis University School of Law

Abstract

Employment discrimination laws in the United States have not created full equality in the workplace, although that was their goal. Real change requires greater accountability for those who make employment decisions and greater transparency to bolster that accountability. To provide that transparency and accountability, we need greater federal involvement in enforcement and a mechanism to publicize the state of the nation's workplaces. To accomplish this, I propose taking private sector employment discrimination disputes away from the Equal Employment Opportunity Commission entirely, and starting with a new agency. The current model, with the EEOC writing compliance guidelines, encouraging mediation, and acting as prosecutor occasionally, is not working. Instead, we need an agency to investigate broadly, issue fact-finding about the state of the nation's workplaces, adjudicate discrimination claims, and promote good practices and voluntary compliance, through something of a hybrid between a truth commission, legislative hearing, and adjudicative agency.