The U.S. Equal Employment Opportunity Commission

Meeting of February 28, 2007, Washington D.C. to Launch E-Race Initiative

Statement of Marc Bendick., Jr., Ph.D 1

The 42 years since creation of the EEOC have witnessed dramatic diminution of race/ethnic/color discrimination in the American labor market, and the EEOC deserves recognition as one central instrument leading to that outcome. Nevertheless, discrimination of this type continues to infect many of the nation’s workplaces.2 What approaches deserve top priority in a new EEOC initiative to continue the process of “Eradicating Racism and Colorism in Employment (E-RACE)?”

Much of my answer to this question is already embodied in two documents recently approved by the Commission: the Systemic Task Force Report (March 2006) and “Section 15: Race and Color Discrimination” of the Compliance Manual (April 2006). However, much work remains to carry out the programs implied in these two important documents. In my remarks today, I review selected state-of-the-art research on discrimination in today’s labor market. Based on that review, I set forth seven practical recommendations, grouped under three broad themes: deepening the EEOC’s conceptual understanding of workplace discrimination; using EEO-1 data to guide systemic investigations; and using testing to address hiring discrimination.

Deepening the EEOC’s
Conceptual Understanding
of Workplace Discrimination

The recent addition to the EEOC’s Compliance Manual of “Section 15: Race and Color Discrimination” substantially increases the attention that document devotes to so-called “subtler” forms of race/ethnic/color discrimination in the workplace. When the Civil Rights Act of 1964 was first implemented 40 years ago, the most typical form of race/ethnic/color discrimination in the workplace was outright exclusion. Persons of color simply were literally absent from certain workplaces or certain occupations within workplaces (particularly those carrying more authority, prestige, and compensation, such as managerial, professional, and skilled craft positions). Four decades later, under the combined influence of changing workforce demographics, changing societal norms, and enforcement of anti-discrimination laws, such situations of “inexorable zero” representation have become increasingly rare.3 But as people of color entered previously off-limits positions within the workplace, they soon encountered unequal treatment or outcomes in aspects of human resource management which arise after initial selection and are often not evident from simple counts of the number persons of color on an employer’s payroll. For example, such issues commonly arise with respect to job assignments, performance evaluations, compensation, pay, advancement, and discipline. These forms of discrimination are not always more “subtle” than outright exclusion, but they are typically more complex.

By giving enhanced attention to discrimination in these more complex forms, Section 15 represents an important effort by the EEOC to catch up to changing times. Unfortunately, Section 15 goes only half way toward equipping EEOC staff with the necessary understanding of contemporary workplace discrimination. The text is largely structured around a “laundry list” of specific forms of discrimination as they might be presented in complaints -- for example, discriminatory screening of job candidates, inequities in compensation, or racially hostile work environments. By adopting this structure, Section 15 implies that specific acts, practices, or policies are the problem to be solved, and that understanding why they arose in a particular workplace is not essential to that solution.

This approach does not square with literally thousands of studies which have accumulated through more than 50 years of research in the social, behavioral, and managerial sciences.4 In a research-based perspective, specific discriminatory acts, policies, or practices are symptoms of underlying problems, not the problem itself. The underlying problem is a corporate culture5 which either actively practices or passively tolerates workplace discrimination. Specific discriminatory acts are rooted in, reflect, and embody this underlying culture.

In some workplaces where race/ethnic/color discrimination operates, the underlying corporate culture includes conscious racist attitudes and perceptions and deliberate adoption of policies and practices disadvantaging job applicants and employees of color; even in 2007, virulent racism is not dead.6 However, in many other workplaces where discrimination is observed, the roots in corporate culture of discriminatory acts and outcomes are largely unconscious, with employers sincerely professing their intention to treat workers of all races/ethnicities/colors even-handedly and honestly (albeit mistakenly) perceiving themselves as free of bias. My own research using EEO-1 data suggests that, in the contemporary American labor market, no more than one employer in five falls into the former category, which I provocatively labeled “hard core discriminators.”7 But whether the causes are conscious or unconscious, active or passive, the point is that the complained-about actions are typically neither isolated nor accidental. They are rooted in an employer world view and normal operating procedures reflecting that world view.

This distinction between symptom and underlying cause is no mere semantic quibble. The key insight provided by the research-based perspective is that, until and unless the underlying corporate culture is changed, enforcement activities which sanction employers for specific acts or mandate that employers change specific practices will have only limited effect. Although employers usually comply with the “letter of the law” of a litigation settlement or court order, the same discriminatory problems tend to re-emerge as the employer does not generalize from avoiding the discredited acts with respect to the complaining employee to avoiding them with all employees, and as unchanged attitudes cause the company to adopt alternative practices or policies which have the same effect as the discarded practices or policies.

Thus, when EEOC investigators are led by their Compliance Manual to focus their investigation on the specific discriminatory acts complained of, and then EEOC litigators adopt the same approach in presenting their evidence and structuring their demands for injunctive relief, even the best efforts by the most talented and dedicated staff are unlikely to significantly advance the goal of erasing racism and colorism in the workplace. Although they may lead to changes in certain obnoxious practices and may deliver compensation and/or improvements for complaining individuals, they do not typically achieve permanent change in employers’ perceptions of their own bias, broader-ranging changes in employer behavior, or substantial improvements in long-run employment outcomes for other employees.

Neither the EEOC alone, nor all enforcement entities public and private combined, has adequate resources to undertake repeated enforcement actions protecting individual employees against specific wrongful acts. Instead, scare enforcement resources need to be focused on changing underlying causes -- corporate cultures which practice, condone, or tolerate discrimination. Such changes, in turn, will trigger appropriate actions by employers themselves to address symptomatic discriminatory acts, practices, and policies.

Let me illustrate this point with two key concepts from the research-based view of discrimination about which Section 15 of the Compliance Manual is entirely or largely silent.

The first example involves subjective decision-making. State-of-the-art thinking on employment discrimination recognizes that psychological and sociological processes such as stereotyping, in-group bias, social comfort, and differential access to social networks are universal tendencies in human thought and organizational behavior. In that circumstance, if an employer simply enunciates an intention to treat all employees equally but then adopts human resource management practices which operate in a subjective and informal manner, discriminatory employment outcomes inevitably result. To avoid discriminatory treatment in the workplace, the employer needs proactively to implement well-known formal employment practices to counter the biasing effects of these psychological and sociological processes. These employment practices include, for example, explicit, validated criteria for hiring and promotional decisions; open competition for job opportunities, rather than pre-decided, tap-on-the-shoulder selections; and explicit training to make employment decision-makers aware of unconscious bias and provide them with practical behavioral tools to minimize its effects.8

This concept of analyzing a workplace in terms of the presence or absence of human resource management practices which minimize subjective decision-making is essential in assessing the credibility of most contemporary employment discrimination complaints. It is particularly applicable to situations where discrimination is alleged but the employer does not appear to be a conscious, virulent racist -- a situation which, I argued above, is typical of perhaps 80% of contemporary American workplaces.

In Section 15 of the Compliance Manual, some concepts related to this approach are discussed -- for example, racial stereotyping on page 15-10 and differential access to social networks on page 15-47. But, as placement of these two concepts 37 pages apart signals, there is no attempt to relate such concepts to each other and to absence of human resource management practices designed to check their biasing effects. If the term “subjective decision-making” appears anywhere within Section 15, then it is done so obscurely that I failed to spot it during several readings. Yet this concept -- and that of an underlying corporate culture where the role of unconscious bias is unrecognized and therefore unfettered subjective decision-making is allowed -- are the underlying causes of discrimination which need to be addressed through enforcement. The discriminatory treatment of an individual through the action of one flawed human resource management practice is what a typical discrimination complaint describes, but that is a symptom of discrimination, not the underlying cause.

My second example involves the concept of micro-inequities. In discussing daily life in the workplace and conduct therein that might support an actionable complaint, pages 15-35 to 15-41 of the Compliance Manual focus on the Supreme Court’s dictum that, to be considered racial harassment, conduct must be severe or pervasive. The examples the Manual provides of situations meeting this standard include display of a hangman’s noose and explicitly racially-mocking comments and gestures made many times a month.

The history of race relations in the American workplace is replete with such explicit incidents, and in more than a few of the “hard core discriminators” discussed above, they continue to arise today. It is therefore appropriate that the Manual include its present discussion of “full blown” racial harassment. However, to have this discussion constitute the Manual’s entire guidance concerning how to analyze employee’s experiences in the daily work environment is startlingly old fashioned. In the perhaps 80% of workplaces which are not hard core discriminators, such dramatic, explicit incidents are not typical of the daily experiences of most employees of color today.

The central concept needed to understand their more typical experiences is micro-inequities, which scholars of contemporary discrimination define as differences in treatment experienced by equally-qualified employees which, in isolation, are of small scale and appear to be of marginal significance.9 For example, average salary increases awarded in one year for members of one demographic group might differ from that for members of another group by only a statistically-insignificant amount; wording in performance evaluations might differ only in the degree of enthusiasm; and some individuals might sometimes be included in informal socializing but less frequently than others. In a similar vein, racially-based comments may be very mild, or even neutral, in content. However, they might signal the continuing salience of the employee’s race, with associated negative stereotypes about people of color, in how others regard that employee.

The small size of micro-inequities is belied by their cumulative effect. Even marginal differences in how employees are perceived often lead to job assignments with substantially different opportunities for acquiring training, experience, or visibility leading to advancement; in the long-run, such differences add up to career outcomes so divergent that protected-class employees and their equally-qualified counterparts, in effect, work at two different firms. Small differences in annual raises and promotion rates can easily snowball into hundreds of thousands of dollars of differences in compensation over the course of a working life. Off-hand repetition of even mild racial comments reinforces the perception that an employee’s race, not her or his performance, is that worker’s most important characteristic.

Employees of color may sense that such micro-inequities signal and implement unequal treatment with substantial adverse long-run consequences. Nevertheless, these employees often find the small incidents difficult to challenge as they arise during the normal work day because to do so might trigger accusations that they are distracting from the organization’s “real work,” are not a team player, or are “too racially sensitive.” It is therefore unfortunate that, should these employees attempt to challenge the same treatment through an EEOC complaint, Section 15 would suggest to investigators of that complaint that, so long as these experiences do not rise to the level of full blown harassment, micro-inequities are not important. If instead, EEOC staff were exposed to the research about micro-inequities and their cumulative effect, they would be encouraged and assisted to consider individual incidents within a broader context and to analyze employment outcomes in terms of long-term career paths rather than simple “snapshot” of employment status at a point in time. In consequence, enforcement might be pursued against workplace discrimination in its most common contemporary form, which does not typically rise to the level of “full blown” racial harassment complaints as Section 15 currently discusses it.

To address these and related weaknesses in the conceptual framework underlying Section 15 of the Compliance Manual, I recommend two action items for inclusion in the E-RACE initiative:

First recommendation: Convene a high-level panel of outside social science researchers to work with EEOC staff on a substantial revision of Section 15 and similar EEOC materials. The goals of the revisions would be to incorporate the rich insights provided by state-of-the-art research on contemporary workplace discrimination.


Second recommendation: Use this panel to develop and deliver training which would communicate these same insights to multiple relevant audiences, including EEOC investigators, EEOC attorneys, employee advocates, and employers.

Central themes within this training should include distinctions between conscious and unconscious discrimination and ways to foment change in discrimination-related aspects of employers’ corporate cultures.

Using EEO-1 Data to Target
Systemic Enforcement

In large part, my discussion of deepening the EEOC’s conceptual understanding of workplace discrimination boils down to the admonition that, in investigating and resolving complaints, EEOC staff should not be narrowly limited to what complaints specifically state but instead should interpret complaints through analytical frameworks provided by state-of-the-art research. I now want to make a parallel argument concerning the role of complaints in determining the EEOC’s allocation of enforcement resources. Rather than simply allocating its resources to processing the flow of complaints it receives, the Agency needs to reserve very substantial proportion of those resources for aggressively pursuing a small number of systemic cases -- “pattern or practice, policy, and or/class cases where the alleged discrimination has a broad impact…”10 Once again, state-of-the-art research offers concepts and tools empowering the EEOC to identify and assess such high priority, high impact cases efficiently.

As the Commission is well aware, complaints tend to arise almost randomly, often reflecting idiosyncratic circumstances such as the presence of a particularly aggrieved, motivated, or courageous employee; access to legal advice; or fortuitous access to critical information. Complaints tend systematically to under-represent hiring problems in favor of post-hiring issues; under-represent growing occupations and industries in favor of stagnant or shrinking ones; and under-represent companies where discrimination is so severe that potential complainants do not get hired. They give no priority to high visibility industries where enforcement actions might have special impact on the broader society (e.g., mass media) or industry-leader companies where enforcement actions may trigger changes by peer firms across an entire industry. For such reasons, allocating limited EEOC enforcement resources proportionately to the flow of complaints received would not maximize the Commission’s impact in eradicating race/ethnic/color discrimination.

Through its EEO-1 reporting system, the EEOC has at its disposal very powerful data which, when properly analyzed, can readily identify high priority targets. For example, according to my own analysis of these data,11 a mere 8% of all employers nationwide account for more than 25% of all minority under-representation in employment and, concurrently, more than 25% of all female under-representation.

In 2000, my colleagues and I were commissioned by the then-Chair of the EEOC to identify from nationwide EEO-1 data several dozen likely targets for systemic investigation. Our response to this request (with individual firm identifying numbers removed) is provided in Attachment B to this testimony. Within the 45 targets identified, the average “shortfall” of protected–class employees (that is, the number of workers potentially directly aided by an EEOC enforcement action) averaged 522 persons per target. Moreover, the observed shortfall in every case was highly statistically significant (an average of 18.5 standard deviations). Together, these two mean that, prior to investing substantial resources to investigation or litigation, the EEOC already knows that every one of the 45 cases offers strong prima facie evidence addressing the “liability” and “numerosity” criteria in class action litigation.

If the Commission is seriously committed to implementing the recommendations of the Systemic Task Force Report, these 45 employers represent immediately-available opportunities to undertake “lead horse” systemic enforcement actions signaling that commitment. Conversely, for the Commission to ignore such immediate opportunities sends the opposite signal to staff and employers alike. I therefore make the following recommendation concerning the E-RACE initiative:

Recommendation Three: From the list in Attachment B (or an easily-updated version of it), identify a small number -- perhaps one to three -- of promising targets where the central issue is race/ethnicity/color discrimination and immediately initiate systemic enforcement against them using Commissioner’s Charges.12

The conceptual reasoning and statistical methods applied in developing the list in Attachment B are described in Attachment A. These two attachments demonstrate that the tools already exist by which the EEOC can routinely and cheaply analyze its EEO-1 data to identify promising targets for systemic enforcement. These tools have already been developed by my colleagues and me with financial support from the Ford Foundation. For only a nominal investment of time and money, our conceptual thinking and implementing software could be transferred to the EEOC statistical staff for ongoing use.

I therefore make the following recommendation concerning the E-RACE Initiative:

Recommendation Four: Immediately obtain readily-available state-of-the-art software tools for analyzing EEO-1 data. Employ this software proactively to develop lists of potential targets for systemic enforcement. These lists should then be presented to the internal Advisory Committee on systemic investigations proposed in the Systemic Task Force Report, as well as the Commission.

By emphasizing that specific instances of discrimination tend not to arise by accident or in isolation, the research perspective discussed earlier in this testimony implies that a workplace where bias is evident in one human resource management practice or against one demographic group is likely to be infected by bias in other human resource management practices or against other groups. This perspective, in turn, suggests that information from a range of sources may be relevant in assessing the presence of systemic discrimination.

Accordingly, in an ideal world, the process of identifying targets for systemic investigation would rely not only on EEO-1 data but also information on each potential target employer from a variety of sources, including complaints received by EEOC offices nationwide, the history of all past and present public and private litigation against this employer, and information from other enforcement entities including the OFCCP and state and local fair employment practices agencies. In that same ideal world, this broad range of information would be automatically accessed and considered in investigating every complaint filed with the EEOC.

However, it is unnecessary to await the long-term development of such ideal circumstances before beginning routinely to combine EEO-1 data with other sources of information in identifying targets for systemic enforcement. For example, suppose that recommendation four is followed and that EEO-1 - based lists of potential targets for systemic enforcement are generated by EEOC staff once per year. EEOC offices nationwide might then be alerted to forward all complaints filed against all firms on those lists to some centralized entity (such as the Advisory Committee proposed in the Systemic Task Force Report)

Restating this proposed approach somewhat more generally, I make the following recommendation:

Recommendation Five: Immediately begin routinely to collect complaint information nationwide on potential targets for systemic enforcement identified through EEO-1 analysis. Conduct this collection process by hand as necessary until systems are developed to combine complaint data with EEO-1 data automatically. Also begin routinely to seek information on those potential targets from other enforcement agencies and similar sources – again, by hand as necessary until more automatic process are developed.

The same EEO-1 data through which the EEOC can identify targets for systemic enforcement can assist enforcement entities outside the EEOC -- including other public agencies, private practice litigators, and non-profit civil rights groups, as well as employers themselves -- to assess employee complaints brought to their attention. The process of eradicating racial/ethnic/color and other forms of discrimination from the American labor market would be greatly accelerated if the complete set of EEO-1 data for individual establishments were made publicly available for all interested parties to analyze. However, such a release would require a substantial change in the data privacy protections under which EEO-1 data are collected.

The EEOC currently publishes on its website summary EEO-1 data for selected industries and locations, and these data are very helpful to the enforcement entities mentioned in the previous paragraph. For example, I personally consult EEO-1 data at least once a week in assisting such entities to assess the viability of potential litigation; in the majority of cases, my statistical analyses have the effect of dissuading the filing of litigation, rather than encouraging it.

To assist this process while staying within current privacy provisions, the EEOC could supplement the industry and location averages it currently publishes by adding the “standard deviations” associated with these averages. This addition would make these data very much more useful in making a pre-litigation preliminary assessment of whether a particular employer’s employment of persons of color is sufficient below that of peer employers in its industry to be “statistically significant.”

I therefore recommend the following as part of the E- RACE initiative:

Recommendation Six: On the EEOC website where the Commission currently publicly releases industry and location averages from EEO-1 data, also release standard deviation calculations. More generally, release as much additional data as is permissible under data privacy provisions of current law.

Using Testing to Address
Hiring Discrimination

In discussing the ways in which complaints do not effectively represent the workplace discrimination which needs to be addressed to eradicate racism and colorism in employment, I mentioned that the normal flow of EEOC complaints tends to under-represent hiring claims. The principal reason this situation arises is that when job applicants are not hired for a position, they typically receive little information about why their application was not successful and whether the person who was selected in their place was more qualified. In the American labor market today, job applicants of color are usually treated politely even by employers who have no intention of hiring them.13 In consequence, applicants of color denied a position often has virtually no information on which to base a complaint, even if they suspect that race/ethnicity/gender discrimination played a role. This situation is particularly unfortunate in efforts to pursue employers where discrimination may be most seriously entrenched. Such employers often avoid being complained about for post-hiring discrimination by not hiring individuals perceived as likely to file complaints; but lack of information prevents complaints about their hiring process, either.

Employment testing (also called paired-comparison testing or employment auditing) is a rigorous social science methodology for measuring employers’ candid responses to the personal characteristics of job applicants. Its approach is that of a laboratory experiment in which only one condition varies while other factors likely to affect a measured outcome are systematically held constant. Testing achieves this circumstance by sending matched pairs of investigators to apply simultaneously for the same actual job vacancy. The testers within each pair are selected, trained, and credentialed to make them appear equally qualified for the job they seek. However, they differ in one personal characteristic, such as race, ethnicity, or color. When testers in a pair then experience substantially different responses to their applications, few assumptions and little analysis are required to infer that the difference is caused by that personal characteristic.

Testing for purposes of measuring the prevalence of discrimination in the labor market have been conducted since 1990, and additional studies are being completed as we meet today. Attachment C to this testimony summarizes 20 of these studies, examining discrimination based on gender and age as well as race/ethnicity/color.14 The bottom row of the table in Attachment C reports the ”net rate of discrimination” found in these studies — roughly, the proportion of employers from whom the protected-class tester received substantially less favorable treatment or employment outcomes than his or her equally-qualified testing partner. In tests involving race, ethnicity, or color, the typical net rate of discrimination is about 20%.

In addition to its role in research studies, testing can also play an important role in employment discrimination litigation. Parallel techniques have been widely applied in enforcement of fair housing laws for several decades. In 1990, the EEOC amended its Compliance Manual to grant testers standing to bring claims under Title VII of the Civil Rights Act of 1964 and to announce that it would accept charges from testers.15

Since that time, testing’s potential in EEO enforcement has been utilized only on a very modest scale. The non-profit Equal Rights Center in Washington, DC, filed (and subsequently successfully settled) two suits. One alleged discrimination by an office of Snelling & Snelling, one of the nation’s largest employment placement agencies, against African American male testers applying for entry-level office positions. The other alleged sexual harassment of female testers seeking employment placement assistance from a solo-practice employment advisor.16 In addition, the non-profit Chicago Legal Assistance Foundation brought suit against a private security firm which did not offer to hire its female African American testers as receptionists.17 In 2000, the OFCCP conducted a pilot project testing firms in the banking, financial services, transportation, and delivery industries. The Agency concluded that testing is a feasible, effective, and efficient enforcement technique and recommended expansion of the effort.18

The EEOC can make a major contribution toward eradicating race/ethnicity/color discrimination by helping to transform these initial testing-based enforcement efforts into broad-scale, ongoing activities. Paired comparison testing should eventually become a routine part of the Agency’s portfolio of enforcement techniques, with EEOC investigators prepared to act as testers or tester supervisors and EEOC attorneys prepared to utilize tester evidence in mediations and litigation. Testing can also be used to monitor post-litigation compliance with injunctive relief.19 In terms of immediate actions in this direction as part of the E-RACE initiative, I make the following recommendation:

Recommendation Seven: Implement a pilot employment testing program focusing on race/ethnicity/color discrimination in hiring.

The Agency can probably implement such a project most quickly and efficiently by contracting with one of the non-profit anti-discrimination enforcement organizations with experience with employment testing. For maximum strategic impact, firms or industries to be tested could be selected from among those targeted for systemic enforcement through the EEO-1 data analyses recommended earlier in this testimony.


1 Bendick and Egan Economic Consultants. Inc., 4411 Westover Place, NW. Washington, DC 20016; (202) 686-0245;;

2 Research evidence supporting this conclusion is summarized in the statement of Professor Harry J. Holzer at the Commission’s Meeting on Race and Color Discrimination on April 19, 2006. Another overview is provided by Marc Bendick, Jr., “Adding Testing to the Nation’s Portfolio of Information on Employment Discrimination,” in Michael Fix and Margery Austin Turner, A National Report Card on Discrimination in America: The Role of Testing (Washington, DC: The Urban Institute Press, 1999), pp. 48-55.

3 However, they have not disappeared. I cannot readily cite data on race, but a parallel pattern is readily observed in a study of gender segregation in the workplace my colleagues and I conducted for the Women’s Bureau of the U.S. Department of Labor. In this study, we counted the number of instances in EEO-1 data in which a reporting establishment had at least ten employees but zero women in an EEO-1 job group (e.g., Officials and Managers). In 1975, 27.5 percent of establishment/job groups reported in EEO-1 data nationwide had zero women, a number which fell over the subsequent decades at an average rate of 0.9 percentage points per year. Nevertheless, in 1998 (the most recent year for which we had data at the time of the study), 37,230 establishments (20.5%) still had at least one job class in which zero women were found. Some 2,049 establishments (1.1%) had complete occupational segregation; every job group was either 100% male or 100% female. See Marc Bendick, Jr., et al., Gender Occupational Segregation: An Analysis of Employers’ EEO-1 Reports (Washington, DC: Women’s Bureau, U.S. Department of Labor, 2000), p.12.

4 For overviews of this research, see William Bielby, “Minimizing Workplace Gender and Racial Bias,” Contemporary Sociology 29, 1 (2000), pp. 120-130, and James M. Jones, Prejudice and Racism (New York: McGraw Hill, 1997).

5 Formally, corporate culture can be defined as the interdependent system of beliefs, values, and ways of behaving common to a workplace. Less formally, it is readily recognized as “the way things are done around here.” See Marc Bendick, Jr., and Mary Lou Egan, Changing Workplace Cultures to Reduce Employment Discrimination (Washington, DC: Conference on Low Wage Workers in the New Economy, 2000), p. 1.

6 See, for example, B. Roberts and J. White, Roberts v. Texaco: A True Story of Race in Corporate America (New York: Avon Books, 1998), and Steve Watkins, The Black O, Racism and Redemption in an American Corporate Empire (Athens: University of Georgia Press, 1997).

7 Bendick et al., “Changing Workplace Cultures,” and Alfred W. Blumrosen, Marc Bendick, Jr., John J. Miller, and Ruth Blumrosen, Employment Discrimination Against Women and Minorities in Georgia (Newark: School of Law, Rutgers University, 1999).

8 See Bielby, “Minimizing Workplace Gender and Racial Bias,” and Marc Bendick, Jr., Mary Lou Egan, and Suzanne Lofhjelm, “Diversity Training: From Anti-Discrimination Compliance to Organization Development.” Human Resource Planning 24,2 (2001), pp. 10-25

9 This concept is particularly well described in Virginia Valian, Why So Slow, The Advancement of Women (Cambridge: MIT Press, 1998). For a recent study extensively illustrating such processes, see Visible Invisibility, Women of Color in Law Firms (Chicago: Commission on Women in the Profession, American Bar Association, 2006).

10Systemic Task Force Report to the Chair of the Equal Employment Opportunity Commission (March 2006), p. 7.

11 The analysis methods I applied in deriving these figures are documented in Marc Bendick, Jr., “Using EEO-1 Data to Analyze Allegations of Employment Discrimination,” (A Presentation to the Section on Labor and Employment Law, American Bar Association, July 2000), which is Attachment A to this testimony.

12 The political acceptability of devoting resources to systemic enforcement might be enhanced if, rather then relying entirely on Commissioner’s Charges, the EEOC selected for systemic enforcement employers which, in addition to being targeted through EEO-1 data, also have pending complaints.

13 See Marc Bendick, Jr., Charles Jackson, and Victor Reinoso, “Measuring Employment Discrimination Through Controlled Experiments,” Review of Black Political Economy 23 (1994), pp. 25-48. Table 4 of that study reports that when equally-qualified African American and white job-seekers were considered for the same entry-level job vacancies, they experienced only modest differences in the probability of receiving an interview and being interviewed by an official with hiring authority, and only a one minute difference in the length of their interviews. However, whites who were interviewed received a job offer at four times the rate of their African American counterparts (47% versus 11%).

14 Attachment C is adapted from Marc Bendick, Jr., “Using Paired Comparison Testing to Develop a Social Psychology of Civil Rights” (Presentation to the Biennial Conference, Society for the Psychological Study of Social Issues, 2004). Multiple employment testing studies are also summarized in Bendick, “Adding Testing to the Nation’s Portfolio” (see footnote 2).

15 “Policy Guidance on the Use of EEO Testers,” November 20, 1990; revised May 1996.

16 See Roderick V.O. Boggs, Joseph Sellers, and Marc Bendick, Jr., “Use of Testing in Civil Rights Enforcement,” in Michael Fix and Raymond J. Struyk (eds.), Clear and Convincing Evidence, Measurement of Discrimination in America (Washington, DC: Urban Institute Press, 1993), pp. 345-376. These two cases, Fair Employment Council v. BMC Marketing Corporation and Fair Employment Council v. Molovinsky, are described on pp. 362-363.

17 Kyra Kyles and Lolita Pierce v. J.K. Guardian Security Services, Inc., 98-3652, U.S. Circuit Court of Appeals for the Seventh Circuit, decided July 5, 2000.

18 U.S. Office of Contract Compliance Programs, Testers Pilot Project Program Executive Initiative (, downloaded 10/31/00).

19 Boggs, Seller and Bendick, “Use of Testing in Civil Rights Enforcement,” pp. 356-359. For example, testing to ensure equal treatment of African American and white restaurant customers was included in the settlement of litigation against Denny’s restaurants sparked by a widely-publicized incident involving failure to serve breakfast to African American Secret Service agents protecting the President. See Jim Adamson, The Denny’s Story, How a Company in Crisis Resurrected its Good Name (New York: John Wiley, 2000).

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