Deference and Disability Discrimination

For thirty-five years, the civil rights community has paid scant attention to administrative law principles. Those interested in advancing on-the-job equality for this country's working men and women (or in preserving employer autonomy vis-a-vis federal encroachment) have all but ignored what many consider the arcane technicalities of administrative law. This state of affairs is strange when one considers that administration and enforcement of each of our major federal laws outlawing employment discrimination have been confided to an administrative agency, the Equal Employment Opportunity Commission ("EEOC"). The EEOC, however, has historically been given short shrift by litigants and by the judiciary.

It is the courts, not the agency, that have given meaning to our nation's employment discrimination statutes. This is an unfortunate result for those who believe that political accountability and agency expertise matter in determining the meaning of indeterminate statutes. And it is a result at odds with developments in administrative law that, at least since 1984, have ostensibly required courts to pay close attention to the views of agencies charged with the administration of statutory regimes.