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Meeting of June 22, 2011 - Disparate Treatment in Hiring

Written Testimony of Bill Lann Lee
Partner at Lewis, Feinberg, Lee, Renaker & Jackson, PC

My name is Bill Lann Lee. Thank you for inviting me to testify. Based on my experience of prosecuting employment discrimination and civil rights class actions on behalf of minority and women plaintiffs since 1975, I recommend that the Commission expand its efforts to effectuate the Commission’s systemic investigation and litigation initiative generally and in the area of hiring discrimination particularly.

I was an attorney with the NAACP Legal Defense and Educational Fund, Inc. from 1974 to 1983 and from 1988 to 1997 where I prosecuted employment discrimination and other civil rights class actions in the Fund’s New York and Los Angeles offices on behalf of African Americans, other minorities and women. I also prosecuted such cases as a lawyer for the Center for Law in the Public Interest in Los Angeles. From December 1997 until January 2001, I served as Assistant Attorney General for Civil Rights in the U.S. Department of Justice in the Administration of President Clinton where I oversaw the litigation of pattern or practice cases brought on behalf of the United States to enforce Title VII against state and local governments and other civil rights statutes. Since my time at the Justice Department, I continue to prosecute employment discrimination and other civil rights class actions as a shareholder at Lewis, Feinberg, Lee, Renaker & Jackson, PC in Oakland, California, and earlier as a partner at Lieff, Cabraser, Heiman, and Bernstein, LLP in San Francisco.

In enacting Title VII to create a national enforcement program against employment discrimination, Congress provided not only for enforcement of the Act through private actions, but also enforcement through litigation in the federal courts by the EEOC should administrative proceedings prove inadequate to resolve a case. The Justice Department also has litigation authority. The Act has been interpreted as focusing not only on cases of individual discrimination, but also systemic litigation affecting sometimes large numbers of employees affected by common policies or practices. As the 2006 EEOC Systemic Task Force Report stated, “combating systemic discrimination should be a top priority at EEOC and an intrinsic, ongoing part of the agency’s daily work.”

I believe that the EEOC has a critical role to play in enforcing Title VII with respect to systemic litigation of cases in which protected groups are denied hiring. The EEOC, Justice Department and private plaintiffs brought many cases in the early years of the Act not only to desegregate the American workplace in terms of occupational and job segregation, but also to overcome denials of employment altogether. Those efforts and voluntary compliance by employers in the 1970s particularly have changed the face of the American workplaces. However, my sense in litigating cases for almost four decades is that hiring discrimination remains a major issue for minority groups, particularly African Americans and Latinos in white collar positions, and for women in non-traditional jobs. Discrimination in hiring is also a substantial problem for individuals with disabilities.

Hiring discrimination goes to the very heart of the purposes Congress had in mind in enacting Title VII to provide for equal employment opportunity. One of the hallmarks of America before 1964 was the exclusion of whole categories of people from many workplaces. Systemic discrimination in hiring today is particularly disheartening to communities where joblessness has put the American Dream on hold. Hiring discrimination is a fundamental problem; it often denies more than one employment opportunity, cutting off future opportunities as well. It is impossible to climb the rungs of a ladder if an individual cannot get a foot on the first rung.

Most of my clients with employment discrimination claims come in with complaints about post-hiring kinds of issues, such as denial of promotions, job assignment or termination. Usually, hiring problems come up indirectly when an employee raises an issue, for example, about being turned down for a promotion or raise and points out in passing that the employee is one of very few individuals of his or her group employed by the company or that the employee has referred friends who did not get hired. In one case, a hiring issue came to light when a minority employee was terminated because a manager told her supervisor that the employee should never have been hired because there were too many of her group at the particular facility.

Nevertheless, I can recall some unsuccessful job applicants who have come in with a complaint about being denied a job on a discriminatory basis. In one case, a woman applied for a driver’s job at several different job locations and happened to observe that all the drivers were men. In another case, a woman with substantial sales experience applied for and was denied a sales job selling an untraditional product, tractors.

While private plaintiffs in theory could challenge hiring discrimination whether discovered indirectly or directly, there are practical reasons why private plaintiffs are less able than the Commission to bring enforcement actions in hiring cases. First, the day is long gone when employers have explicit, written policies barring employment of blacks or women that can be can be challenged on a facial basis. My experience is that many systemic hiring cases today concern the effects of covert policies or the effects of practices that are part of a pattern or practice or unjustified adverse impact.

Second, for this reason, many individuals who suffer from hiring discrimination are not aware of underlying exclusion or discrimination, and consequently do not file administrative charges or seek counsel about denial of employment. Rarely do applicants know who got the job much less who applied and was also turned down. They usually are uncertain why they were turned down.

Third, because of the resources and time required to investigate non-facial claims of systemic hiring discrimination, many private counsel or public interest organizations are simply not in a position to undertake the investigation--much less the prosecution--of systemic hiring cases.

Fourth, investigations of systemic hiring cases pose unique challenges to private counsel and public interest organizations. While post-employment job assignment or promotion cases can be investigated by interviewing incumbent employees who believe that they have been denied positions or witnesses to apparent exclusion, the identities of potential victims of hiring discrimination are usually not known. By definition, they were never hired. (In this respect, hiring cases are similar to cases challenging discrimination in compensation practices in which individual employees usually do not know what other employees are paid and do not know if they are paid less than those in a favored group.)

The exception proves the rule with respect to the investigation of systemic hiring discrimination. Many reported hiring cases concern individuals denied public employment as a result of a written test or selection procedure used to generate a publicly-available list of persons eligible or ineligible for hiring. The recent Supreme Court case in Lewis v. City of Chicago, 130 S. Ct. 2191 (2011) is an example. Unlike most hiring situations, the victims of alleged discrimination in public sector testing cases are identifiable.

There are also other reasons why the private bar and public interest organizations are less able to investigate and prosecute systemic cases. Recent Supreme Court cases on pleading of specific facts in support of allegations may create difficulties in some districts for bringing systemic cases in light of the difficulties of investigating systemic hiring without being able to conduct discovery. Some federal courts have imposed restrictions on Rule 23 class actions that I believe are unwarranted, particularly those challenging the use of subjective practices by large employers. Absent class treatment, discovery of systemic hiring claims is extremely difficult to obtain.

In contrast, the Commission is potentially better able to investigate possible systemic hiring discrimination. EEOC has access to EEO-1 data and Department of Labor OFCCP data for employers who are federal contractors that can be used in combination with census and other data to identify employers for further investigation of hiring discrimination on a pattern or practice or disparate impact basis. Thus, EEOC does not have to rely solely on complaints—which in any event are unlikely to allege hiring discrimination--to target cases for investigation of systemic hiring. The ability to use objective data to target investigations of employers improves the quality and reliability of systemic investigations and may result in stronger cases. Once an employer is targeted, EEOC can utilize its subpoena authority, if necessary, to investigate hiring practices and identify individuals who might have been subject to discrimination. As a result, the EEOC can usually compile a more substantial factual basis before filing an enforcement action than the private bar or a public interest organization. Once the EEOC decides to go forward on a pattern or practice or disparate impact basis, it does not have to comply with Rule 23 restrictions.

One of my jobs as Assistant General for Civil Rights was to set priorities when expending resources. The Commission obviously must do the same. Because Title VII is enforced both by the government and by private plaintiffs as private attorneys general, one factor the Commission ought to take into account in setting priorities is whether a particular area is being adequately enforced by private plaintiffs. Hiring discrimination should rate highly on that criterion. The limitations on the ability of private plaintiffs to bring enforcement actions preclude substantial private enforcement of guarantees against hiring discrimination, notwithstanding the national importance of overcoming invidious discrimination in hiring. I therefore recommend that the Commission consider making hiring a priority for systemic investigations and expand enforcement efforts.

I also recommend that the Commission use existing tools—such as EEO-1 reporting forms and OFCCP reports--to target investigation of potential cases of systemic hiring, and consider how existing tools might be augmented to create regular, ongoing targeting. Examples of employers that might be looked at for possible targeting are companies with representations of protected employees that fall outside industry profiles and “dirty” industries with low representations.

In investigating employers, the Commission should consider developing investigative procedures based on successful systemic investigations conducted by district offices, encouraging district offices to collaborate on investigations of larger employers, and conducting joint investigations with other agencies, such as DOJ and OFCCP. These are suggestions that the Commission may already have adopted. If so, I recommend further experimentation along these lines not only to make scarce dollars go further but to share and develop investigative expertise and skill.

There is also the need for research on the scope and nature of the problem of hiring discrimination for priority setting and to focus enforcement efforts. I think others can testify better about the particular kinds of research that should be undertaken. I would just like to make the point that the important work of sociologists like Alexandra Kalev and her colleagues on affirmative action strategy outcomes suggests that social science research could be helpful to the work of the EEOC on hiring discrimination.

Thanks again for the opportunity to address the Commission and I am happy to answer questions.