The U.S. Equal Employment Opportunity Commission

Commission Meeting of Febuary 28, 2007


The Commission convened at 9:00 a.m., Naomi C. Earp, Chair, presiding.


STUART J. ISHIMARU, Commissioner


Remembrance of Ricky Gaull Silberman

Announcement of Notation Votes

Opening Statements

Preamble to Panel

Panel I

Panel II

Panel III


9:04 a.m.

CHAIR EARP: The meeting will now come to order. Good morning and welcome. In accordance with the Sunshine Act, today's meeting is open to public observation of the Commission's deliberations and voting.

Before we begin the procedural and substantive parts of the meeting, I would like to take a moment to remember former EEOC Vice Chairman, Ricky Gaull Silberman who passed away last week. Ricky Silberman served as Vice Chairman at EEOC from November 19, 1985 to October 7, 1994. She brought to the Commission a wealth of experience and a dedication to enforcing our civil rights laws. Ricky was a great advocate for the mission of EEOC and for its employees. She will be missed by all of us, particularly those of us who knew her and worked with her.

Vice Chair Silverman and I had the opportunity to lunch with former Chairman Silberman last fall. It was wonderful, even though Ricky was ill, she was in great spirits and I will treasure the wise counsel and advice that she provided to us.

COMMISSIONER ISHIMARU: I didn't know Vice Chair Silberman, but I knew from former colleagues of ours what a wonderful member of this body she was. I would also note the passing of Tom Powers, who was the first Executive Director I've been told of the EEOC and I didn't know that. I always thought Tom Powers was a big time private sector lawyer, partner of Ron's I think, at Steptoe & Johnson, and reading his obituary in the paper; he made great contributions to this agency as well. Both will sorely be missed and both served this country admirably.

CHAIR EARP: At this time, I'm going to ask Bernadette Wilson to announce any notation votes that have been taken since the last Commission meeting. Ms. Wilson.

MS. WILSON: Good morning, Madam Chair, Madam Vice Chair, Commissioners. I'm Bernadette Wilson from the Executive Secretariat.

We'd like to remind our audience that questions and comments from the audience are not permitted during the meeting, and we ask that you carry on any conversations outside the meeting room, departing and reentering as quietly as possible. Also, please take this opportunity to turn your cell phones off, or to vibrate mode.

I would also like to remind the audience that in addition to the elevators, in case of emergency, there are stairways down the halls to the right and left as you exit this room. Additionally, the rest rooms are down the hall to the right.

During the period September 6, 2006 through February 26, 2007, the Commission acted on 38 items by notation votes:

Approved litigation on 27 cases;

Approved resolutions honoring Lenora Guarraia, Edison Elkins, Mildred Byrd and Ron Arrington on their retirement;

Approved a resolution in memory of N. Thompson Powers;

Approved the obligation of funds for strategic plan performance surveys;

Approved the acquisition of upgraded software maintenance;

Approved the statistical analysis system maintenance agreement;

Approved the final rule on addresses of the Las Vegas and Mobile offices;

Approved revisions to 29 CFR Part 1603; and, Approved the expedited mail services contracts.

Madam Chair, it is appropriate at this time to have a motion to close the March 5, 2007 Commission meeting to consider litigation.

CHAIR EARP: Thank you, Ms. Wilson. Do I hear a motion?


CHAIR EARP: Is there a second?


CHAIR EARP: Any discussion? Hearing none, all those in favor?

(Chorus of ayes.)

CHAIR EARP: Opposed?

(No response.)

CHAIR EARP: The ayes have it and the motion is carried. Thank you, Ms. Wilson.

Good morning again. It is with great pleasure that I welcome you to this Commission meeting to discuss and gather information on the topic of race and color discrimination.

One housekeeping note before we begin. I’d like to remind everyone that we have a very full agenda today and we're on a tight time line. To afford each panelist their fully-allotted time to speak and to allow each Commissioner time to ask questions, I've asked our Legal Counsel to make use of the timing lights. The timing light will turn yellow, giving each panelist and Commissioner a one minute warning. When the light turns red, it means stop, your time has expired. You may finish your thought, but please respect the time limits so that those scheduled later in this meeting are not rushed.

Now let's turn to the substance of today's meeting. Since the Commission opened its doors, race discrimination charges have been the most frequent basis of all charges received and that continues to this day. Despite great progress in equal opportunity, 42 years after signing the Civil Rights Act of 1964, discrimination is still with us, although it has changed form.

In the past, discrimination was explicit, Blacks and women were overtly denied job opportunity. While we still see some overt discrimination like nooses in racial harassment cases, we now see far more subtle forms of discrimination in the workplace.

Companies no longer post signs that say "No Blacks need apply." Instead, some companies simply screen Blacks out when they sort and discard applications by zip codes. The advancement of Asian Americans may be restricted by the glass ceiling, or as some friends of mine refer to “the bamboo ceiling," which is based on outdated cultural stereotypes and assumptions.

In order to combat 21st century race and color discrimination, and this is color and race discrimination against any group on those prohibited bases, the EEOC needs a 21st century response. To that end, I am proud to announce the E-Race Initiative - Eradicating Racism and Colorism in Employment. E-Race is intended to be fluid, dynamic and inclusive. We will enhance our outreach and enforcement efforts by working more closely with stakeholders, leveraging our resources and raising public awareness about the continuing nature of race and color discrimination.

Our public awareness campaign will necessarily target outreach to Asian communities. We will build upon the release of the Race and Color Chapter of our Compliance Manual which was issued just about a year ago.

E-Race is collaborative in nature. We seek collaboration internally, with our stakeholders and with employers. We must all work together to eradicate discrimination in the workplace and we must all learn to listen to each other even when we don't agree. And we must all learn that racism is not just about issues of black and white.

I am enthusiastic and passionate about this initiative. I am also grateful for the support of my fellow Commissioners in this effort, especially the work of Commissioner Stuart Ishimaru and his staff. Today's meeting would not have happened without their assistance, their advice, their input. This meeting is just another step on the long road to equal opportunity, and I'm happy to have our invited panelists take this step with us.

Our expert panelists will testify on existing and emerging issues in the 21st century workplace. They will identify best practices and they will recommend strategies for the Commission to consider in eradicating race and color bias.

As you know, probably no one will agree with everything that's said here today. However, like any problem, in order to come to the most informed and effective solution, a wide net should be cast to gather information. After casting the net, a spirited discussion should follow and ultimately, decisions should be as thoughtful and as reasonable as we can humanly make them.

Now in the order of seniority, we will hear from my fellow Commissioners. Vice Chair?

VICE CHAIR SILVERMAN: Thank you, Madam Chair, and welcome to, I think it's your second meeting and the first one you’ve planned.

COMMISSIONER ISHIMARU: She plans them all, doesn't she?

VICE CHAIR SILVERMAN: This is her special one. I'd like to welcome all of our speakers who have traveled here from far and wide to share their perspectives with us today. And I'd also like to welcome the many people joining us from advocacy groups and from the business community, as well the staff attending today's meetings here in Headquarters and watching from the field.

This is a very important Commission meeting. It highlights the continuing problem of race and color discrimination in this country and it serves as a springboard for Chair Earp's new E-Race Initiative. I applaud the Chair for making the fight against race and color discrimination one of her top priorities at the Commission. When she talked earlier about her passion, she truly meant what she said.

As Chair Earp already mentioned, there has always been more charges of race discrimination filed with the EEOC than any other types of charges filed, and the EEOC has worked hard at combating race discrimination in all of its forms and I'm proud of the work that we have done. In particular, I am confident that our enforcement and litigation programs have contributed significantly to reducing race discrimination in this country over the past 40 years.

Of course, we know that our work is not finished. It's frustrating that after all these years we continue to see so many cases of race discrimination. Egregious racial harassment continues to plague too many American workplaces and we still see too many instances of blatant race discrimination in hiring and promotion and in other areas.

At the same time, we know that race discrimination today is often less obvious and harder to detect. The growing diversity in this country also has brought new issues and challenges to the American workplace. So there is still so much work to do.

I believe that the Commission's new systemic program will play a crucial role as we move forward. The recommendations of the systemic task force, which the Commission unanimously approved last year, were aimed at ensuring that the EEOC identified, investigated and litigated broad impact cases using a strategic, comprehensive and nationwide approach. Our new systemic program should give this agency a greater opportunity to uncover and eliminate practices and policies that keep the doors shut and the opportunities limited for people of color.

Again, I thank the Chair for her leadership in shining a brighter light on race and color discrimination and I look forward to hearing from all our speakers and continuing this dialogue in the future. Thank you.

CHAIR EARP: Commissioner?

COMMISSIONER ISHIMARU: Thank you, Madam Chair. I join the Vice Chair in applauding your leadership, I think it's outstanding. I am pleased we're here to take more steps to grapple publicly with the difficult and often sensitive issues pertaining to race and that we're looking beyond just black and white and we're also including Asians, Hispanics, Native Americans, racism at large. I think that's a good idea.

I'm especially pleased to announce that my office will be working with the Chair's office to develop a list of specific substantive objectives and activities in support of E-Race. We plan to share this list with our stakeholders within the next 30 days and obtain their feedback and after reviewing the stakeholders' comments, we will finalize the list of objectives and publicly roll it out. Our offices are looking forward to a productive collaboration on the E-Race Initiative.

It's my view that in order to carry out the E-Race Initiative we have a variety of tools at our disposal and we have an obligation to use all the tools made available to us by Congress and the courts as well as to explore new tools. We can't afford to shy away from difficult issues and theories.

Let me spotlight just some of the tools I think may be getting a little rusty here at the EEOC, disparate impact cases, looking beyond the charges that walk through our doors and Vice Chair Silverman's systemic recommendations begin to address this issue for this agency, and we should be doing more analysis of the mountains of EEO-1 data that we possess and that's not available to the general public. Again, this is something that I believe will be covered by the systemic recommendations; looking at hiring and promotion goals and our consent degrees; looking at affirmative action as a remedy; looking at match pair testing, something Dr. Bendick will talk about later; and using our bully pulpit to encourage employers to use voluntary actions to deal with the problems of race discrimination.

The newly-announced E-Race Initiative is like a new tool, a Swiss Army knife, if you will, and I applaud the Chair for moving forward on this.

This is something we should aspire to, eradicating racism and colorism from employment is an ambitious objective. The question is how do we get there and how do we do it as a national law enforcement agency? How do we shift available resources and not count on additional resources? If we get them fine, but given the hard reality, how do we do it with what we have? How do we do it not to sacrifice other substantive and important work we do? I don't have an easy answer for this, but I know that our staff is good around the country and when they're told to do something, they will try to do it. So I am hopeful. And we can't do it alone, I think working in partnership with our friends in the communities, civil rights groups, employers, business community folks, plaintiffs attorneys is a good idea.

Let me thank the Chair for asking Dr. Bendick to talk about the issue of matched pair testing.  I think that's an issue that is long done in other areas of the law and something that I think we should be exploring and I applaud you for asking him to talk about it.

And finally, I’d like to welcome our Regional Attorneys and the Charging Parties who have come with us today. Filing charges of discrimination with the EEOC is very hard to do. It's very difficult and it takes an enormous amount of courage. To be able to come here and share your stories with us, I think, will inform us of the difficulties we face even today 40 plus years after the passage of the Civil Rights Act. So I'm looking forward to the Hearing today and thank you again, Madam Chair, for your leadership.

CHAIR EARP: Thank you, Commissioner. Commissioner Griffin?

COMMISSIONER GRIFFIN: I too would like to add my congratulations to the Chair and the staff for holding today's Commission meeting. This meeting is an outgrowth of the Commission meeting that we had last April during which we announced the new EEOC Compliance Manual Section on Race and Color Discrimination. And at that time, then Vice Chair Earp and Commissioner Ishimaru worked long and hard with Peggy Mastroianni and the Office of Legal Counsel in not only developing this Section, but also developing and implementing the corresponding training for our investigators and they are to be commended for their efforts.

I believe that our renewed focus on race and color discrimination dovetails very nicely with the Commission's new systemic enforcement program. Each of our district offices have developed systemic enforcement plans, some of which will target policies and practices that have a disparate impact on racial and ethnic minority applicants and employees. Although the Commission has been committed to fighting race and color discrimination for nearly 43 years, as everyone I think before me has mentioned, we still see instances of egregious blatant discrimination in the workplace. But it's the more subtle forms of race and color discrimination that actually have a greater impact.

The use of seemingly neutral hiring criteria and forms of employment testing adversely impact African Americans and other protected groups. As a Commission, we recognize also that the issue of dual or intersectional discrimination is an important part of our Title VII enforcement work and I'm particularly interested in the intersectional discrimination faced by people of color who are also individuals with disabilities.

The unemployment rate for minorities with disabilities remains unconscionably high according to the Employment and Disability Institute at Cornell University. Their study found that for working-age people with disabilities, 72 percent of African Americans with disabilities, 62 percent of Hispanics with disabilities and 60 percent of Asian Americans with disabilities are not working. The percentage of unemployed is even higher for people of color who have severe disabilities. Clearly, there is still much that the EEOC needs to do if we are to play a critical role in fighting race and color discrimination in the workplace in this 21st century.

So, in closing, I would like to quote Colin Powell who said it best. "There are those who say we can stop now. America is a color-blind society, but it isn't there yet. There are those who say we have a level playing field, but we don't yet. There are those who say that all you need to do is climb up on your boot straps, but there are too many Americans who don't have boots much less boot straps." He said that in 1996 and it's still true today.

I look forward to hearing from our panelists about the tools the Commission can use to actually challenge race and color discrimination in the 21st century. Thank you.

CHAIR EARP: Thank you, Commissioners. We have a number of panels. I will introduce them as they’re called to present, but will start today's speakers with James E. Rotch, who is a partner with Bradley Arant Rose & White, a Birmingham law firm. I've asked Mr. Rotch to help us set the tone for the rest of the day's meeting by serving as a preamble. Jim?

MR. ROTCH: Thank you, Madam Chair. Good morning, ladies and gentlemen. Let me begin by thanking the Commission and particularly you, Madam Chair, for your interest in my subject matter and for the opportunity to be here with you today. I bring you greetings from Birmingham and I promise that I'm going to pick up the pace on my natural Southern drawl a little bit in light of that light up there.


MR. ROTCH: The Birmingham Pledge is a grassroots effort which began in the Birmingham community in late 1997 to eliminate racism all over the world one person at a time. And while the effort has now become a movement that has enjoyed great success locally, nationally and even internationally, I regret to acknowledge as of this morning we have not accomplished our mission.

As we all know, unfortunately, racism still exists in the hearts and minds and often in the actions of a significant portion of our population. In Birmingham, throughout the nation and around the world, the forms of racism’s manifestation in this country have changed since the `50s and `60s when African Americans took to the streets of Birmingham and other cities to demand their constitutional rights. Nevertheless, it persists.

Many very good people sincerely believe that if we just stop talking about racism so much it would just go away. I don't believe that to be the case. I don't think benign neglect solves very many of our important problems in society. If it did, we probably wouldn't need so many lawyers and judges.

As the Chair noted, great strides have been made since the so-called Civil Rights Era brought about in significant part by laws designed to provide very basic rights, laws like the Civil Rights Act of `64 and the Voting Rights Act of `65.

Not to diminish in any way the importance of progress brought about by the enforcement of such laws, I submit for your consideration this morning the premise that while laws are reasonably effective in modifying the actions of our citizens, they're really not very effective when it comes to changing the hearts and minds of people. And I firmly believe that unless we can affect a wholesale change in the hearts and minds, that is to say the attitudes of a significant segment of the population of the United States, the EEOC will have absolute job security, your work will never be done. And our court systems throughout the country, Federal and state, will continue to have to deal with conflicts and situations which, whether apparent or not, are rooted in issues of race.

Now you ask, "Is such a paradigm shift in attitude possible?" I say that to believe otherwise is to concede that racism will always be a part of our lives, a concession that no person of good faith who yearns for a more humane world could ever make.

In November 1997, I was driving along from Mobile, Alabama to Birmingham on a beautiful Saturday afternoon returning home from a Leadership Alabama retreat. As I drove, I reflected on a lifetime of encounters with racism in many forms in my native state of Alabama and beyond and wondered how we as a society could ever free ourselves of its bondage. It occurred to me that society has many ills which most individuals can do very little to remedy. Consider cancer for example. Cancer is a terrible thing and yet there is very little that most of us as individuals can do to eliminate cancer from our world.

But racism is a different story. If all people everywhere woke up one morning and firmly resolved that there would be no more racial prejudice, and if we all lived that principle each day of our lives, then racial prejudice and the actions that flow from it would be eradicated from the face of the earth.

Now I am not so naive as to think that that's going to happen tomorrow morning or any morning for that matter. But we as a society must move down that path, individual by individual, step by step, if the journey is ever to be completed.

We need to create a national and international dialogue on the elimination of racism such as the world has never before seen. Such a dialogue in order to be successful needs a focal point. A simple statement of mutual belief around which people of good faith can rally, could serve as that focal point.

I began to collect my thoughts on a legal pad in the seat beside me as I drove. The words I wrote that day which focused on the inherent worth of every individual and the dignity and respect to which every person is entitled, were in a short time adopted by much of the Birmingham community as the Birmingham Pledge.

Because the words are so important to the concept, I want to take the time to say the words to you now. "I believe that every person has worth as an individual. I believe that every person is entitled to dignity and respect, regardless of race or color. I believe that every thought and every act of racial prejudice is harmful. If it is my thought or act, then it is harmful to me as well as to others. Therefore, from this day forward, I will strive daily to eliminate racial prejudice from my thoughts and actions. I will discourage racial prejudice by others at every opportunity. I will treat all people with dignity and respect. And I will strive daily to honor this pledge knowing that the world will be a better place because of my effort."

Now a simple concept was worked out utilizing those words. We would expose as many people as possible to the words and ask each to make the personal commitment called for. That personal commitment would be communicated to our foundation in Birmingham and made public by recording it at the Birmingham Civil Rights Institute, much as one would record a document in a court house and make it public. We have a website, where one can sign electronically and where paper signatures are recorded. The act of making the personal commitment public hopefully bolsters one's resolve to keep the commitment and at the same time provide an opportunity to influence others to do the same.

In January 1998, the effort was launched publicly at the Martin Luther King Unity Breakfast in Birmingham. Approximately 2,000 people stood, read the words aloud in unison and from that humble beginning, the Birmingham Pledge, boosted by the coincidental growth of the internet, quickly spread around the world. People from all walks of life, in countries on every continent, have joined the effort.

In 2000, the U.S. Congress passed a joint resolution in support of the Birmingham Pledge, and in 2002, President Bush issued a proclamation declaring the week which encompasses September 15th as National Birmingham Pledge Week. I will end with that and entertain your questions.

CHAIR EARP: Thank you.

VICE CHAIR SILVERMAN: Thank you, Mr. Rotch, for being here today. I think the work that you're doing, raising awareness of the problem of racism, is very admirable and important.  But I was wondering, and this is an issue that we at the EEOC struggle with all of the time, and that is how do you measure success? How do you know that you're having a real impact when it comes to eliminating racism and what do you think is important to consider in evaluating whether hearts and minds are changing?

MR. ROTCH: That's a very good question and one that we struggle with with the Birmingham Pledge Foundation. It's a question which people who would consider supporting our foundation financially ask. I'll have to say that we've not found a good way to measure that. We do count the number of pledges that come in, and as of this morning, we have officially recorded something like 112,000. It's been nearly ten years, I would have thought it would have been a million, frankly, and so I think the very fact that it's not a million or ten million says something about our lack of progress and the fact that there is still much work to be done.

We did as a foundation conduct our study in our community several years ago and in an attempt to do just that. And one of the things that we learned through that study was that the overwhelming majority of people thought that the first responsibility for this lay in the faith community. It came as a surprise to us.

VICE CHAIR SILVERMAN: So have you been working with the faith community as well on the Pledge?

MR. ROTCH: We do, absolutely.

VICE CHAIR SILVERMAN: Okay. Thank you very much.

MR. ROTCH: Thank you.

COMMISSIONER ISHIMARU: That’s fascinating about the faith community because one of my observations is how segregated the faith community often is, how on Sundays it's one of the most segregated times certainly in this country as people go to their places to worship. I think one of the unique things about employment and the EEOC is that it really has been one of the few places in American life where people of different races have come together over the last 40 years to work together, to see each other as individuals, but I'm delighted you're working with the faith community.

I too join my colleagues in praising the Birmingham Pledge. Birmingham has such a rich history in the civil rights movement. And I'm pleased to say that I'm one of the 112,000 who have taken the pledge along with people like President Clinton and Archbishop Tutu. Obviously, more outreach needs to be done.

But I would assume you would agree with me that pledging is just a start and that you're looking for actions as well and that we need to look at actions beyond just taking the pledge in our everyday life, in our workplace, in our homes, in our communities. How do you grapple with that back home? How do you -- You're at a big law firm in Alabama, the biggest one, I think, in Birmingham. How does the firm deal with this in making progress to make sure there's real equal opportunity for all comers at your firm?

MR. ROTCH: Another very good question. The motto of the Birmingham Pledge developed early on in recognition of what you said which is, "Sign it, Live it." We recognize that signing it is not enough. We have to take actions all the time.

With this national Birmingham Pledge week, we have begun some programs, one of the most successful of which has been a teen conference. We bring in teenagers from high schools around the community. We're fortunate to be able to bring in -- we bring them to the Civil Rights Institute. We're fortunate to be able to bring still icons from the Civil Rights Movement, Fred Shuttleworth, Dorothy Cotton, folks like that, to James Bevill, to come in and it's a meaningful experience for them and we do it a little bit at a time.

So far as my law firm is concerned, I've been there 35 years. I've seen the demographics change. I'm not an employment lawyer. I'm a merger and acquisition lawyer. But I asked some of our employment lawyers before I came up here for this trip "How has your practice changed over this period of time? What can I say to the Commission about this?" and I think the most significant thing was, that there has been a major shift from bending enforcement actions to counseling with clients about how to comply with the law, and I think there's a direct correlation there.

COMMISSIONER ISHIMARU: It's great you're working with the young people. I know that the Chair's Youth at Work Initiative has started that across the country in our other offices as well and for young people, this is ancient history and to bring it back and paint a real picture is very important. Thank you, Mr. Rotch. Thank you, Madam Chair.

COMMISSIONER GRIFFIN: I just want to ask you. You mentioned actually in your statement about the Birmingham Police Department and certainly given their acts of violence and discrimination at the height of the civil rights movement, I'm curious, is that a way to measure some success is to look at like the Birmingham Police Force who have all signed the Pledge at this point and try and measure with them a difference to see improvement?

MR. ROTCH: Well, certainly, that is something that could be measured. We know that at one point 98.5 percent of the police force had signed it. The real story of the Birmingham Pledge is the way people in Birmingham, but really around the county and around the world, have found to take these words and use them on their own, but I'll give you one example that relates to the police department. In Birmingham, we have police headquarters in downtown Birmingham on one of the main streets. A big blank wall where they tore down a building to make parking room and they concreted over it, a lady in our community, a former police captain, saw that as a blank canvas with opportunity and she put together a program in the community to create a mural to put on the side of the police building. So now when you drive to police headquarters in Birmingham and park your car, the first thing you see are the words of the Birmingham Pledge and a mural depicting four children walking off into the sunset, it's very moving and dramatic.

How many people does that affect? I don't know, but I have people tell me all the time "Oh, that's the thing that's on the side of the police building." I think it makes a difference.

COMMISSIONER GRIFFIN: Well, it's probably a nice reminder when they're pulling in or anybody else. It's sort of a daily renewal of thinking of it. So it probably is a good thing to have there. Thank you.

MR. ROTCH: Thank you.

CHAIR EARP: Thank you, Mr. Rotch.

CHAIR EARP: The first panel members, may I ask you to come forward.


CHAIR EARP: Panel 1, Frank Wu, Dean of Wayne State University Law School; Dr. Marc Bendick of Bendick and Egan Economic Consultants; and Professor Diane Seltzer with the Seltzer Law Group. Thank you for being here. Shall we start with you, Dr. Wu?

DEAN WU: Good morning and thank you. I'd like to make just two simple points. Those are first that race is not literally black and white and second, that race is not figuratively, metaphorically, symbolically black and white.

The first point I hope is a modest statement about the world that we live in. I would suggest that it doesn't matter what our own ethnic background is, where our ancestors came from.  It doesn't matter what our politics are, what public policies we favor, what academic discipline we were trained in, what region of the country we live in. This nation has always had a history that is much more complex than just two racial categories; and it's becoming increasingly apparent if you look at Hawaii, New York City, many of our college campuses. If you just walk down the street in Washington, D.C., you see the diversity within diversity.

Our nation with a population of approximately 300 million now, a third of whom are members of different racial minority groups, has approximately 42.7 Hispanics, 39.7 African Americans, 14.4 million Asian Americans and 5.5 million persons of Native ancestry. This is the world that we inhabit and whatever we talk about when it comes to race, I would suggest it's important to start with an accurate picture of the world around us. Doing so is possible without, I would add, in any way slighting the enormously important history of the Civil Rights Movement, of the tragic practices of chattel slavery and the Jim Crow era of the historic black/white color line. All we have to do is take a look at the work of W.E.B. DuBois who in 1903 in his prophetic work, The Souls of Black Folk, a collection of essays as well worth reading today as it was then said, "The problem with the 20th century is the problem of the color line."

What's interesting about that quote is it's almost always given in exactly that way and that misrepresents what DuBois actually wrote. For if you go back and read the passage that it's extracted from, I haven't even given you half the words in the sentence. What DuBois really wrote was this, "The problem of the 20th century is the problem of the color line, the relation of the darker to lighter races of man in Asia, in Africa, in the Americas and the islands of the sea." So DuBois then, there could be no doubt that as a founder of the NAACP, as the first race man, that he cared passionately and poignantly about uplift of African Americans in particular, but he was able to situate that struggle within a broader context, a global context, recognizing that by bridge building and by bringing in other communities in a constructive manner, we could make more progress than with the strict black/white paradigm.

And that leads directly to the second point that I would make that race is not figuratively, symbolically, metaphorically black and white and I believe that this E-Race project demonstrates that. There was a time when the challenge was to persuade people that practices that everyone recognized, that were overt, that were egregious, that were obvious, that people were proud of, that there was something wrong with those practices, not just that they violated the law and our shared consensus, but that there was something morally wrong.

And we have succeeded in large part in that struggle, though there are still some extreme cases. Now, we recognize that matters are more complex; that it isn't just the clear cut instances where everyone recognizes bigotry, but that sometimes it's patterns and practices, sometimes it's the legacy of history, sometimes it's unconscious generalizations or it's irrelevant characteristics. It's perceptions that all of us have even without malice.

And so when it comes to these issues, perhaps we need to be proactive and adopt remedies that are suited to those prongs. Studies consistently show that the best way to make good on our shared ideals is to have places where we gather in all of our diversity, our workplaces, our college campuses. And studies also consistently show that the single most effective means of ensuring that we have diverse workplaces and diverse campuses is to adopt carefully-designed, racially-conscious remedial measures. So affirmative action may be one of the tools in the kit that we bring to this struggle.

So thank you again for allowing me this opportunity to testify and to make what I think are two simple points that all of us can agree on that race is not literally nor is it figuratively black and white.

CHAIR EARP: Thank you. Dr. Bendick?

DR. BENDICK: Thank you, Madam Chair. I am Marc Bendick, Jr., an economist and my written testimony summarizes several decades of research by myself and some other people. So orally, I will simply highlight some recommendations which that research supports.

My first recommendation concerns the Commission's conceptual understanding of contemporary workplace discrimination. The new Section 15 of the Agency's Compliance Manual which was mentioned earlier on race and color substantially strengthens the discussion of discrimination, especially the kinds of discrimination which take place after hiring. But, unfortunately, Section 15 provides Commission staff with only about half the understanding needed to do their jobs.

It focuses on a laundry list of specific forms of discrimination as they typically appear in the complaints the Agency is called upon to process. This structure implies that the specific acts or practices are the problems to be eliminated. However, more than 50 years of research in the social and managerial sciences teaches that specific discriminatory acts or practices are symptoms of underlying problems, not the problem in itself. The underlying problem is a corporate culture in the workplace which either actively practices or passively tolerates discrimination.

My own research suggests that no more than about one employer in five today is consciously racist. But whether discrimination is conscious or unconscious, active or passive, unless an employer's underlying corporate culture is changed, enforcement actions by the EEOC which sanction employers for specific acts or mandate that they change specific practices, tend to have only limited effect. After employers comply with the letter of the law of some litigation settlement, discrimination simply reemerges, just in a different form.

When EEOC investigators and attorneys are led by their compliance manual to focus only on the specific acts complained of, even their best efforts by the most talented and dedicated staff are unlikely to significantly or permanently reduce racism and colorism in the workplace. I, therefore, recommend that the Commission convene a high level panel of outside researchers familiar with this body of research to work with the EEOC staff on a substantial revision of the compliance manual and similar materials.

My next recommendations concern using EEO-1 data to guide systemic investigations. Rather than devoting the majority of its attention to processing its huge flow of complaints, the Agency can most effectively combat discrimination by reserving very substantial resources for aggressively pursuing a small number of cases with particularly broad impact.

The Commission's EEO-1 reporting system, when properly analyzed, can efficiently identify priority subjects for systemic enforcement including those missed by the complaint process. According to my own analysis, a mere eight percent of all employers nationwide account for more than 25 percent of all minority under representation in the workplace, plus the same firms, more than 25 percent of all female under representation.

Recognizing those sorts of patterns, in 2000, my colleagues and I were contracted by the Commission to identify high priority subjects for systemic investigation. We provided the Agency with a list of 45 typical high priority targets and those are attached in my written testimony, that list. Had the Agency pursued those 45 employers, an average of 522 workers would have been aided by each of the 45 enforcement actions and, by the way, the list will be provided to the Agency included the problem area which eventually became the high profile litigation, Dukes vs. Walmart, the largest gender discrimination class in the nation with the class of 1.5 million women.

If the Commission is seriously committed to implementing the recommendations of this systemic task force, these 45 employers represent immediate opportunities. I recommend that from the list in my written testimony or some updated version of it, the Commission identify one to three promising targets where the central issue is race and immediately initiate high profile Commissioners' charges.

As that list illustrates, the statistical tools already exist by which the EEOC can proactively analyze the EEO-1 data. I recommend that the Commission immediately obtain these readily available tools and begin routinely to search proactively for opportunities for systemic enforcement.

EEO-1 data can also assist anti-discrimination entities outside the Agency, including other public agencies, private litigators, civil rights groups and employers themselves. I recommend that the Commission proactively release as much EEO-1 data as is permissible under data privacy provisions. For example, or in particular, I recommend that on the EEOC website where the Commission currently releases industry averages from the EEO-1 data, it also release standard deviation calculations.

My final recommendations concern the use of testing to address hiring discrimination. When job applicants are not hired, they typically obtain little information about why they were not successful and therefore, have little basis on which to file Commission charges. Employment testing is a rigorous methodology for documenting discrimination in these often hidden circumstances.

It involves dispatching matched pairs of investigators to apply simultaneously for the same actual jobs. Testers within each pair are selected and credentialed to be equally qualified for the jobs they seek, but they differ in one personal characteristic such as race.

Several dozen testing studies have estimated the prevalence of race discrimination in hiring. Again, my written testimony provides a table summarizing them. These studies typically document problems of race in hiring in about one employer in five tested. Testing also has substantial under utilized potential to bring enforcement actions against those same employers. In 1990, the Commission voted to grant testers standing under Title VII and to accept tester-based charges. But since then only three tester-based suits have been brought, none of them by the EEOC.

The Commission can make a major contribution toward eradicating race discrimination by helping to scale up testing-based enforcement efforts. To move in that direction, I recommend that the Commission implement a pilot employment testing program focusing on race. This program could be put in place quickly and efficiently by contracting with one of the non-profit organizations with employment testing experience and it can be closely coordinated with the sorts of targets for systemic enforcement identified through analysis of EEO-1 data.

I thank the Commission for this opportunity to share my ideas.

CHAIR EARP: Thank you. Professor Seltzer.

PROF. SELTZER: Good morning, Commissioners. In my background as an attorney and as someone who teaches, I have certainly had the opportunity to witness firsthand the attitudes of employers and employees and students towards diversity in the workplace. We can try to teach people in general and employers in particular that discrimination and prejudice are bad. We can discuss all of the legal consequences of getting caught discriminating, but I submit to the Commission that without providing convincing, underlying reasons why diversity is a valuable asset, we're not really doing all we can to eradicate discrimination. Employers will do cost/benefit analyses of whether they should make a certain decision and what the likely outcome will be, and then they will just decide whether they're willing to absorb that risk. I submit to the Commission that employers need to become comfortable with diversity and it would be helpful for the Commission to adopt and publicize a campaign along the lines of "Get Comfortable with Diversity."

The Commission should speak to the business community in its own language. What drives the business community is its profits, and if there's a way to get the message to the business community that diversity and having a diverse workforce will somehow increase its bottom line and make its company more profitable, then the employer, the company, will hear that message and instead of going through motions of having a diverse workforce because it's morally correct or because it eliminates litigation risks; they will actually see tangible benefits of having a diverse workforce in terms of more ideas in the workplace, a better exchange of viewpoints in the workplace and an increase in its bottom line. It will see an actual business impact.

So I submit to the Commission that there must be a campaign to encourage employers to understand why diversity is good, why they must embrace diversity. It's not enough to say it's because the law requires it. It's not enough to say because we have a moral obligation to have a workforce that reflects not only the United States but the global marketplace that's out there, and we have to convince these companies why diversity in the workforce leads to more customers, why it increases sales, why it leads or how it leads to better product development, how it drives business results in a positive way. Emphasizing the globalization of the marketplace is one way to achieve this. Our markets are global, our customers are global; therefore, if we have a workforce that reflects the actual customer base that the company has, it could increase its bottom line. I think this is an opportunity that's been overlooked in promoting diversity and now there is literature starting to come out emphasizing the benefits of the diversity that companies implement.

In August 2006, Cedric Herring, who is a professor in the Department of Sociology at the University of Illinois at Chicago, published a paper called, "Does Diversity Pay: Racial Composition of Firms and the Business Case for Diversity." I submit to the Commission that when you are speaking to the business community, if you speak their language, if you show them studies done by social scientists that show a positive correlation between a diverse workforce and increased profitability, the business community will listen to that and it will not be a legal issue, it will not be a moral issue; it will be a business issue and that's the language they need to hear because that is the language they speak.

There needs to be an emphasis by the EEOC on encouraging hiring chief diversity officers who not only have human resources backgrounds, but who have finance and marketing backgrounds because, again, they will understand why the composition of their workforce can drive business results, not only eliminate legal or moral issues. If the EEOC works with social scientists and commissions more studies, or at least amasses and studies the research that has been done on the benefits of diversity in the workplace and can promote the positive connection between diverse workforces and increased business results, it will go a long way towards eradicating discrimination in the workplace while at the same time promoting the diversity for the right reasons.

The studies have shown, the literature has shown, that diversity in the workforce enables companies to speak to their customers and to understand their customers better and their customers' needs and wants, what kind of products and services their customers want. Having a diverse workforce will enable them to better reach their customers, to develop more products and services, and to increase their bottom line, and not to only emphasize that money is the motivator here, it's not.

As I've said, there are legal issues, there are moral issues, but if the goal is to reach the business community with the message of getting comfortable with diversity, I submit that business leaders are going to ask why. How does it help my business, because that is what they're there to do. They're there to increase their profits and they have their fiduciary duties to their stakeholders and their shareholders, who at the end of the day, want to see money. So if we can get the message that diversity will increase profitability, will make the business a more successful business, not just because certain bad things are prevented, but because certain good things will happen from diversity; then we will have done our job and that is a resource that I think the Commission can utilize. Thank you.

CHAIR EARP: Thank you. Vice Chair?

VICE CHAIR SILVERMAN: Thank you all for being here. I'm wondering from the entire panel what you think are some specific practices or policies that you believe employers should have in place to minimize subjective decision-making?

DR. BENDICK: The research literature is quite clear. I refer to, when I'm testifying on this subject; I refer to these as HR 101. There are very standard practices having to do with explicit performance criteria, open posting of job vacancies, supervisory training on the nature of unconscious bias and how it affects their decision making, structured employment interviews. There are literally textbook solutions to the problem of subjective decision making. The research is quite clear that it is in the environment of subjective decision making, unstructured decisions, unanchored by explicit criteria, that unconscious bias flourishes. And so, good practice employers have a toolkit that's readily available for them to adopt to address those problems.

PROF. SELTZER: I know when grading exams I have blind grading numbers. I don't know who my students are and I know that that is a much more objective way of giving a grade on an exam than if I knew who the student was. I can always change the final grade, but I can't change the exam grade based on who is writing the exam.

I don't know of a way to have blind applicants. I don't know of a way to decode a résumé or make someone more anonymous than their résumé would belie, but if there was some way to develop that, I would love to see that the résumé be converted to something where there is less of an identification system of what zip code someone lives in, what first name they have. It would eliminate certainly gender issues, it would eliminate race and color issues because there are certain names, certain zip codes, that we see that indicate a likelihood that someone lives there and they are there for a member of a certain category of protected class. I don't know how to convert that data, but if there were some way to make the applicant process more blind-graded in a sense, that would certainly help.

DEAN WU: I would suggest two measures. The first is recruitment beyond traditional networks. Studies also consistently show that most people hired into most jobs have some pre-existing connection, whether it's a friend, a neighbor or some connection to that workplace, and so if you take a look at the social networks that people move in, minority group members tend to move in more restricted social networks. That is, they tend to know more people who are friends with the same group of people, come from the same neighborhood, and that means they are less likely to be part of the networks that lead to meaningful employment opportunities, so recruitment at historically black colleges, recruitment through advertising in minority or ethnic newspapers, and so on, to ensure that the opportunities are made known to a broader segment of the population.

Second, there's an issue that is fast developing and it's the use of psychometric testing and other evaluation tools that will lead employers to quickly dismiss prospective employees on the basis of factors that many of us might find quite troubling. Some of these correlate to particular cultural patterns, race or gender, and if that is not already something that you're taking a look at, I would suggest that that be examined with care.

VICE CHAIR SILVERMAN: Okay. I also have a question for Dr. Bendick. I thank you for your comments on the best way to detect possible discrimination using EEO-1 data. I think that the systemic task force recommendations are consistent with many of your recommendations and that the task force felt that we could be even more effective in identifying possible systemic discrimination by going beyond EEO-1 analysis alone.

While we feel that we have a good program for reviewing EEO-1 data now here at the EEOC, we are working to enhance it further. But there is also so much other information at our fingertips here at the EEOC, such as charge data and data on local labor markets. In addition to the analysis of EEO-1 data, what information do you think we at the Commission should be looking at when we're trying to identify possible systemic discrimination?

DR. BENDICK: I absolutely agree that you want to look far beyond EEO-1 data. The advantage of EEO-1 data is that it is in hand in a readily processible form and laying your hands on the rest of the information that you might like to look at has long been a major administrative stumbling block. So it's important, I think, to move forward with whatever data you have in hand as the leading edge adding more data as you get more access to it. But definitely, you’d want to look at charge information. To the extent that you can coordinate it from all over the country, that can tell you a lot about whether you're dealing with a nationwide problem or a localized problem.

You certainly want to look at investigations that have been done by other public agencies like the OFCCP. You certainly want to look at not only EEO-1 information about the specific demographic dimension on which a complaint is based, but on other demographic dimensions as well, so that, for example, if you want to know something about how open is a company to hiring or advancing women when you're investigating a charge of race discrimination because, research says, that the process of discrimination often is quite generic. It's a problem of in-groups versus out-groups where an employee can find himself in an out-group based on race, gender, age, personality, what branch of the military you served in, all sorts of irrelevant characteristics. So there is probative information in the demographic information about a company's profile that isn't just the demographic information on the specific dimension in a complaint.

Definitely I would endorse throwing, casting the net as wide as possible. But I think the most important principle is the Commission shouldn't wait until all the ideal data coordination systems are in place and it can now have access to every piece of information that it might like to have. The Commission should move ahead now using whatever information it can lay its hands on, formally or informally, get in the habit of using as much information as possible, and that habit will in turn motivate the building of better data access systems.

VICE CHAIR SILVERMAN: I think I would disagree with you there in one part and that is if we just go whole hog at the beginning for 20 companies, we're just not going to have the resources. So I would rather us at least take the time and look at the data and hone in on what it is that we're looking for so that we can use the resources that we have strategically. So, I think it's probably a combination of both methods, taking as much data, not huge amounts of time, but doing it efficiently so that we do choose correctly, because processing all the information that we are going to get from those potential companies, we don't have the resources.

DR. BENDICK: Well that's why I'm focusing on EEO-1 data as your No. 1 screening device.


DR. BENDICK: That can be done for literally nickels and dimes.

VICE CHAIR SILVERMAN: That can, but then the Commissioners' charges and the information that comes back - someone still has to read all that, so we want to get as much as we can to begin with before we go that next step. Okay, thank you.

CHAIR EARP: Commissioner.

COMMISSIONER ISHIMARU: Thank you, Madam Chair. I think it's fascinating that we're talking about EEO-1 data. I know last year when we were dealing with the EEO-1, quite often the response that I got in talking to people, especially internally, was that EEO-1 data was not that useful and I think clearly EEO-1 data that we collect is useful and should be utilized more, and I hope that happens.

Dean Wu, you're one of the nation's leading experts in race and affirmative action and you testified in the University of Michigan case as an expert. What would you say to those who say that affirmative action, the use of race, when you're dealing with employment or admissions, that it puts too much emphasis on race, that you can't use it for outreach for recruitment because it creates a racial category? What would you say to those people who say we should be totally color blind, we should just let the chips fall where they may?

DEAN WU: I would offer several responses. Fundamentally, the argument that we should just all be color blind though it has rhetorical appeal, in practical terms it simply doesn't work. It confuses the data with the problem. If the National Weather Service stopped tracking hurricanes and tornados, they wouldn't stop destroying communities. We simply wouldn't know where they were touching down, how severe they were and how to better predict them.

The gathering of data, the careful, appropriate analysis of the data, the use of data about race, ethnicity and gender, not in a one-size-fits-all manner, but carefully tailored to the particular context so that under the Supreme Court's Grutter and Gratz cases, it is narrowly tailored, is in my view an effective tool. I come to that conclusion based on studying these issues, taking a look, for example, at the enormous, profound work done by William Bowen and Derrick Bok in their magisterial study, The Shape of The River, where they did what no one else had ever done before.

They looked at about 40 years of college admissions data. That's the most comprehensive study ever done. They looked at who was admitted, who was denied and how well people did in school and afterward. Whatever arguments you may have about affirmative action it's clear that the individuals who were admitted were qualified. Yes, they did have slightly lower grades and test scores. It is also true that they performed just about as well in college. They graduated at similar rates when you account for wealth and financial background and they made good on that opportunity. So I understand people may disagree about the pros and cons of these programs. But the data on whether they are effective is for the most part conclusive. This data shows that when you use affirmative action, you take people who otherwise would be overlooked, who would not be given that chance at some of our nation's most elite institutions, large and small, public and private, and that when offered the opportunity, they succeed.

Bowen and Bok also demonstrate that there is no other means of producing those results. There is no proxy for race that is as effective. You can look at socio-economic class, you can look at geography, you can try everything you want; you'll come up with some half measures, but none of them address racial discrimination or racial disparities as looking at race itself does.

The other data presented in the U of M cases, that the court-decided in 2003, none of which of the trial of the law school case was contested. The empirical data about the classroom experience showed that when you have a classroom with people of diverse backgrounds, you can measure and you can show the discussion changes, the learning experience changes, not just for those individuals, but for everyone sitting in that classroom.

I would add that in part what has happened is we've been misled by a notion that for any job opening, for any seat at a college or a law school, there is one person who is markedly better qualified than everyone else and that if we look at simple measures such as the SAT or the LSAT or grades that that will allow us to determine who is conclusively the best qualified person.

Those measurements, those credentials, do assist and we certainly rely on them, but studies also consistently show that they are modest predictors at best and that many people outperform those standardized tests and grades and many people underperform how well you would think they would do.

And so affirmative action has proven itself effective. It has proven itself to be the only means if we are serious about a critical mass of people of color on college campuses and in our workplaces, and it would, in my view, be detrimental to society regardless of one's own racial background if we overemphasize credentials and other superficial measurements.

COMMISSIONER ISHIMARU: I wish we had more time, Madam Chair. I have questions for Dr. Bendick, but I won't pose them now on matched pair testing and I'll look forward to talking to him and the other panelists offline.

CHAIR EARP: Thank you. Commissioner Griffin?

COMMISSIONER GRIFFIN: Yes, Dr. Wu, you talk about a well-designed affirmative action program. Can you list out the factors that you think would go into a well-designed affirmative action plan?

DEAN WU: Sure. The first would be a careful empirical study of that workplace or that college campus. What currently are the numbers that you see of different demographic groups? What are the applicant pools that that institution draws from? And how does that compare? So that you see particular groups in some instances are severely under represented compared to what you would expect and in other instances less so. It's, in my view, is not just a best practice, it's required under the current law that you have a program that is based on that particular institution, that workplace or that college campus.

Beyond that, that you look at a program that is designed so that race is just a factor, it's not the sole factor, it's not the most important factor; it's a factor. It is weighed among many other factors. And that as you perform a study case by case of each applicant to that university or for that workplace, you engage in a holistic review of the entire file. You consider every relevant aspect of whether they might do well or would succeed, would finish college, finish law school, perform that job well, so all of these, and that you engage in regular review that does not be static and fixed but be dynamic and that you benchmark and look at how you've succeeded. You track not just admissions data, but you track how well students do. Are they retained? Do they graduate? What happens to them afterward? It is in my view fundamentally an empirical question. Look at the data and then you design a program around that particular context.


CHAIR EARP: I have one general question. I think that we would all agree that race should not be the basis for most employment decisions. I should not look at a stack of applications and say I want to hire white people, I want to hire black people. But I think I hear the panel suggesting and Professor Seltzer perhaps goes one step further by saying consider race not just when it's a compelling interest, but give it some thought when the businesses need it for their bottom line.

I'd like to have each of you very quickly just react to is it not a slippery slope when we start doing the very thing that we should not be doing and that is making decisions based on race. I mean ultimately that's where we want to get even though color-blind is probably like the Birmingham Pledge. It's a place where maybe our great, great, great, great, great, great, great grandchildren will see as a reality and can we start with you, Professor Selzter?

PROF. SELTZER: Absolutely. I would take the example beyond race and I would say if this candidate is anything other than a -- is going to make this workforce diverse in some way, whether we have all white men in this workforce and this applicant could bring something different to the table. Maybe we have a predominantly female workforce and this applicant could bring something different to the table.

The approach I'm suggesting is still individual based, still merit based and I think there is the element of color or race or any other class blindedness, but acknowledging that the workforce and the applicant-base are diverse. So taking it more philosophically to the level of what does diversity in general bring so that when I hire someone I don't really care what race they are or what gender they are or anything about them except to be thinking positively. This could enhance my business because it makes my workforce more diverse.

I agree with you that this could become a slippery slope and on one hand, you don't want to devalue someone's diversity, but you don't want to overemphasize that they are in a protected class and you get stuck in the middle.  And that's why I'm taking it on a much more general level. If we think diversity is a good thing and here's why, here are the reasons why, then we can appreciate people's differences and to the extent that they bring different ideas to the table, we want a diverse workforce, but I don't know that I would take it on a particular level, "well, this candidate is of this race so we should hire them for diversity's sake."


PROF. SELTZER: I know that it does become a slippery slope, I agree, and that's why I'm saying it more on a broad level than on the individual applicant.


DEAN WU: None of us wants to be put into a box or to think that we were selected to be a token just because they needed a face who looked like that. At the same time, the only way to address serious societal problems is to be aware of the problem, so I would answer your question by saying this. Yes, there is a slippery slope, there's a risk, there always is a risk; but there's a greater risk of having institutions that are not inclusive, that are not dynamic, that do not adjust and do not allow us to achieve the greatest ideals that we have. So race should be considered not as the only factor, and it would be wrong if someone went out and said, "Well, today I think I'm only going to hire white men" or "Tomorrow I'm only going to hire African American women." But if they said, "I will think about race in a positive light" so as to address the history of overt discrimination as well as the lingering, subtle forms of bias that I may have tucked away in the recesses of my mind that I'm not even aware of in each individual case, but in the aggregate which become apparent, then, and only then, I think it would be appropriate to consider race.


DR. BENDICK: In an earlier question, Commissioner Silverman brought to the table a very important part of this puzzle which is concrete practices which an employer can implement in its HR system to address the problems of subjective decision making and sloppy decision making. Often the under representation of racial groups or other protected groups is a result of simply sloppy decision making, a loose, unstructured HR system in which there are no criteria, there are no principles, the supervisors are not trained to do a decent job of being supervisors.

What we find is, in many companies, go in and set up highly structured, state-of-the-art systems running an HR system, a lot of the race, gender or other disparities disappear by that alone. Only then do you have to start looking at the question of, are there residual problems of where some race conscious remedy might be appropriate? But I think it's important to realize in concrete situations in real companies, most of the problems turn out to be quite susceptible to race-neutral solutions.

CHAIR EARP: Thank you to the panel. Hearing no objection, I'd like to take a ten minute break before panel two, and it will only be ten minutes. If you don't really have to go, stay in the room. Thank you.

[Whereupon a short recess was taken]

CHAIR EARP: On our second panel, we will hear from Darrell S. Gay of DLA Piper, Roger Clegg from the Center for Equal Opportunity and Weldon H. Latham, Davis Wright Tremaine. Gentlemen. Why don't we start with you, Mr. Gay?

MR. GAY: Madam Chair and Vice Chair, Commissioners, thank you for allowing me to come and speak to you today. I’ve got to tell you that this is a discussion that's very close and personal to me. As a black man in America, I recognize that my being accepted into college, law school, to having had a position as an attorney with the Government, serving as a commissioner of the State Civil Service of New York and even a partner in a firm today is directly due to the efforts of affirmative action diversity. I don't doubt that for a second. I'm not confused by it. And I think one of the biggest problems to understanding of diversity and affirmative action is a total lack of understanding of what it's all about. It is not structured to deny individuals a chance to have a job someone else less qualified can have. It is to allow for inclusion. I think that has been the biggest confusion. I have sat with a group of -- and I do defense side, and I have sat with other lawyers who represent companies and listen to some of them say that in using diversity they have to compromise the qualifications of individuals. And I think they have totally lost track of what it's all about. It is not about that.

I heard Ms. Seltzer mention earlier that she wished that the Commission would send a message of the importance of diversity. I think most major corporations at least are beginning to recognize the value of diversity. They have looked at the studies and have seen that it improves the bottom line. They have looked at the results of performance at workplaces. I think McDonald's, Walmart, all these companies, there is a host of companies that are starting to look at this more and more and seeing this value to having a content workforce, to having a workforce that enjoys working with each other. They recognize the fact that when you bring together people of diverse body, you get a much more productive workforce. You produce a better quality product for your client.

And look at the consumer force. As the population of this country continues to grow - is growing in a diverse manner. This country is no longer majority non-minority, and majority in very few people of the population. Over a third of this population is minority in this country now and that is a growing statistic. More so, as we have more interracial marriages, the lines of who's black, who's white, is declining.

Now, since I was a kid, and I said that I came along and I had to become a product of affirmative action, things have gotten better, there's no question about that, but we're not there yet. We've a long way to go. I still see signals when I walk into an elevator or when I walk into a room of a client who has only talked to me on the phone. I'm a partner at DLA Piper, Gay is actually a white name, so it could be okay. You walk in. they know your credentials, Columbia Law School, you've been Commissioner of Civil Service, Oh, great. You walk in, and you get that "Oh!" I had one person once say to me, and they looked at me and I said, "What's the matter?" and they said, “Oh, oh - I thought you would be older."


MR. GAY: I appreciate the compliment. I'm glad I look young. But the reality is we forget that race stands out. I walk in to apply for a job and I'm Black. That doesn’t change, and it clearly becomes an issue and it's been demonstrated by many studies even across the world, even in France recently, some people did that and it shows. The fact that Black people are denied less opportunities or minorities less opportunities than people who are White.

There was a Princeton study, I believe, that showed that the employers are more willing to hire, what do you call it, criminals who had records than they were to hire Blacks with credentials without records. We have an issue.

Now Ms. Seltzer said once again she wanted you to convey a message that diversity is important. They recognize that. One of the problems we face when we as counsel for companies want to have them look to increase their diversity, they are concerned that someone is going to sue them for reverse discrimination.

First of all, I don't believe there's anything such as reverse discrimination. You can be discriminated against because you're White or Black or Asian. But there's no thing as reverse discrimination. It's a misnomer.

What I would love to see the Commission do and I'm going to get more into this discussion, but what I would love to see the Commission in response to Ms. Seltzer is not to convey the importance of diversity but convey the fact that this Commission is endorsing the support for the inclusion of people, endorsing the eradication of discrimination.

When you're trying to accomplish a goal, any goal this country accomplishes, we have to have it accomplished by efforts that require affirmative action, whether it be affirmative action to increase finances, affirmative action to increase population, affirmative action to increase the bottom line of a product. To increase the diverse body of people who are in your workforce, it's going to require a little bit of incentive.

Now we are in a society that is incentive-based, and I've always been mystified why it appears that no matter what group we have, they always seem to find that diversity is this difficulty. Now I'm a lawyer, and among my things that I have done through the years is one of the groups I've helped found was a group called Minority Corporate Counsel Association which many of you might recognize is one of the leading bodies resulting diversity and is celebrating its 10th anniversary. It totally astounds me when I have people suggest that it's inappropriate for corporations to suggest to their law firms that they should have more minorities on the case. It totally astounds me! Why? Because it's okay to have all Whites? Is that okay? Is that appropriate? That's been the status quo.

When you want to challenge the concept that we're saying to corporate companies and law firms that we want to have more minorities, recognize where that's coming from. It's coming from the reality that they have not been included. I sit in New York City. New York City is probably the host home of hundreds and thousands of lawyers, numbers of partners.

I belong to a group of Black partners in New York. There are about 80 of us. That's a tragic statement. Nationally, there's only four percent, I think, of partners --


MR. GAY: Eighty some Black partners in New York. Now that's a tragic statement about something.  Now does that mean that none of us are qualified? Does it mean that there are those who don't have the credentials to be partners? They suggest, I think -- one major corporation out of Texas at one point did a very aggressive motion about demanding that their law firms diversify and produce lawyers to work on the matters that would be -- they're responsible for, them being the lawyers on the cases. That particular corporation and general counsel was attacked aggressively, political cartoons, all suggesting "Oh, they want diversity but not quality."

I would challenge anybody who would suggest that to anyone, to look at the credentials of the minority lawyers who are being hired. It's amazing to me that that when most firms and most organizations look at credentials for hiring and I'm looking at law firms mostly because as a lawyer I know that best. We look at law review, we look at grades, we look at Ivy League. Well, are our clients looking for us to be the best test takers, the best academes? Or are they looking for us to be the best talented lawyers? Some of the best, most talented trial lawyers in this country, best, most talented corporate lawyers in the country, didn't necessarily come from Ivy League.

The minority corporate counsels, there's a study, a metric study, on that question, the correlation between those individuals who are hired and what they required to hire, and those who in ten or twenty years make it possible for them to exist. There was no correlation.

One last thing. I want to say one thing. We're traveling from California to New York with diversity. We got to Chicago. Let's make it to New York. Let's not stop now. I strongly encourage EEOC to keep pushing this effort. Thank you.

CHAIR EARP: Thank you. Mr. Clegg?

MR. CLEGG: Thank you, Commissioners, for the invitation again to testify before the EEOC. My name is Roger Clegg and I am President and General Counsel of the Center for Equal Opportunity. I should also note that I was a deputy in the U.S. Department of Justice's Civil Rights Division for four years and that I was Vice President and General Counsel of the National Legal Center for the Public Interest which is a corporate oriented legal organization.

The Center for Equal Opportunity is committed to the equal protection of the laws and to nondiscrimination on the basis of race, ethnicity and sex in employment. And that includes the vigorous enforcement of Title VII of the 1964 Civil Rights Act. The point of my testimony today is that too often the corporate celebration of diversity becomes the opposite of true equal employment opportunity. It becomes instead a form of affirmative action that is really to use Nathan Glazer's phrase, "Nothing more than affirmative discrimination." Whenever you hear the word "diversity" or the phrase "affirmative action" today, you should ask whether people are being treated differently, some better, some worse, because of race, ethnicity or sex.

Before I go any further, however, I think it's important to define the kinds of diversity policies that are and are not at issue today. To begin with, of course, no one is suggesting that there is anything wrong with having a diverse workforce. No one is suggesting that companies ought to discriminate against women or minorities or that they should be anything less than vigilant, aggressive and proactive in eliminating and preventing such discrimination. No one is suggesting that companies shouldn't cast a wide net in their recruiting.

The issue rather is the narrow but crucial one of whether companies ought to be hiring and promoting with an eye on applicants' and employees' race, ethnicity and sex in order to achieve a predetermined and enforced diversity. It is clear that many companies weigh these factors, unfortunately.

In a survey a decade ago, for instance, eight of ten business executives said that affirmative action programs had resulted in them giving jobs and promotions to applicants who were less qualified than others. I think that since then things have not gotten any better. I find that it is always useful when considering the legality of a practice to put the shoe on the other foot, that is, to ask what the reaction would be if a measure being proposed to advance diversity were instead being used in a way to tilt the scales in favor of whites and men.

In my written statement, I collect many examples of the kinds of discrimination that are going on and then I explain why they lack logical, empirical, moral and especially legal justification. Let me just give you a few examples.

When the president of a company tells his middle managers that if they fail to meet their goal of hiring or promoting a certain percentage of this or that group, then they won't be getting a year-end bonus, then that is encouraging discrimination. If a company tells its outside legal counsel that it will be fired unless it fields a suitably diverse legal team, then that is encouraging discrimination.

By the way, I should mention that Kurt Levi will be discussing this issue next month on March 13th, a few blocks away at the American Enterprise Institute, and I hope that some of you can attend or take a look at the paper that he will be presenting there.

If an internship or a mentoring opportunity is set aside for certain racial groups, then that is discrimination. America is becoming an increasingly multi-racial, multi-ethnic society. Darrell was right about that, and that can be a source of great strength, but, it can also be a source of division if people know that they aren't all being held to the same standards. The only way to enforce the anti-discrimination laws in our multi-racial, multi-ethnic society, is by playing no favorites.

Now does this mean that minorities and women no longer suffer any discrimination? Of course not. But the solution to fighting discrimination is not to overlay a system of preferences on top of it. The solution that the personnel manager in the accounting department at company X is a bigot, is not for the shipping department there to give preferences, let alone for company Y to do so. The solution is to enforce the law against whoever is discriminating in the first place.

I hope the Commission will agree with me and enforce the law. We at the Center for Equal Opportunity certainly plan to continue confronting companies with discriminatory policies, urging individuals to file complaints against them if the policies aren't changed and bringing those companies to the Commission's attention, too. When we do, we hope the Commission will act.

I will be blunt. The Commission has been too passive to date with respect to company diversity policies I have described today and it is hard for me to imagine that it would have been this passive if the shoe had been on the other foot. Accordingly, many individuals think the EEOC is not interested in protecting them and many companies believe the EEOC will not object to affirmative discrimination. You need to file some lawsuits that challenge some of the abuses that I have described.

Thank you again very much for the opportunity to testify today and I look forward to answering any questions that you may have.

CHAIR EARP: Thank you. Mr. Latham?

MR. LATHAM: Good morning, Chair Earp and Members of the Commission. I thank you for the opportunity to express my views and those of many of my clients: a number of the nation's leading corporations and champions for workplace fairness.

My name is Weldon Latham. I'm a senior partner with Davis Wright Tremaine, an international law firm, and chair of its corporate diversity counseling group. In that role, I advise clients on development and implementation of best practices, diversity initiatives and comprehensive diversity action plans.

Many of our nation's most forward thinking companies have recognized not only the historic discrimination and hostility that exists against minorities and women, but they've recognized that these conditions continue to exist in the workplace today and that there's a perpetuation of barriers that have prevented equal access and equal levels of access to various levels of success and endeavors in the business community. Thus, corporate diversity programs have become an increasingly popular means of securing inclusion in the workplace.

While many corporations have been proactive in overcoming institutional barriers to workplace inclusion, there are hundreds of other companies making little or no effort to diversify their organizations. Discrimination remains an all too common problem in the workplace, a problem that opponents of affirmative workplace efforts would like the Commission, the rest of the Federal Government and the nation to ignore. They allege that American business has achieved workplace equality. They claim that there is no good reason for companies to consider race or sex in hiring and promotion. That claim could not be any further from the truth.

Let's look at what we see just when we look around the nation today. Daily the media accounts of employment discrimination lawsuits, hundreds of them. There are multi-million dollar settlements against companies that have engaged in discrimination or permitted discrimination. Twenty-seven thousand EEOC race discrimination claims in 2006 and $61 million recovered by your Agency on behalf of those claimants. OFCCP has recovered over $50 million in similar cases.

While minorities account for only ten percent of the seats in Fortune 500 companies, they represent 30 percent of the population, a strange comparison still in this year when people tell us that equality exists. Corporate America clearly has not yet achieved a level playing field. Affirmative and inclusionary efforts are necessary to eliminate mistreatment, to eliminate prejudices and to prevent equal opportunity from being ignored.

The Federal Government and the Supreme Court have provided a legal framework for eradicating the pernicious barriers to employment equality. Such things as Title VII itself and your own aggressive actions as a Commission that I applaud you for and your own regulations that have given guidance to corporations as to how to deal with these issues. Executive Order 11246 and OFCCP regulations of 40 years ago that are still required today, and this Supreme Court in Webber and Johnson rulings that the employers' affirmative action plans may constitute legitimate, non-discriminatory reasons for decisions taking race and gender into account, have presented an environment that allows you to act and act aggressively. Despite what opponents say, the law of the land today is that you are not prohibited from taking action to create a more diverse and fair and equitable environment.

The underlying premise for these well-established principles too often is ignored. Discrimination and exclusion of minorities in American workplaces are still common today. Companies that have taken no steps or instituted only the most basic nondiscrimination compliance, run a real risk that they will be the next Texaco or Denny's that faces major class action discrimination claims, pay large settlements, judgments, legal fees, adverse press coverage and depressed employee morale. These are the true threats that major companies face and that I'm pleased to say the companies that I meet today want to avoid in favor of a more diverse environment.

Companies energetically pursuing employment diversity and inclusion are rewarded with benefits of talented and inclusive work environments. Despite frivolous rhetoric of affirmative action opponents, conclusions are clear that Corporate America has not created a level playing field and doing nothing to achieve diversity and inclusion will only perpetuate a workplace that excludes rather than brings together that workplace in a cohesive effort.

As Justice Sandra Day O'Connor emphasized in Adarand, the unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality and government is not disqualified from acting in response to it. Thus, the Commission must continue to fulfill its mission both by effective enforcement that you are engaged in and also by embracing voluntary efforts of employers to achieve real employment [non]discrimination.

The last thing I'll say is that I've had the pleasure of serving as the chair of Deloitte & Touche's diversity advisory board, a group that brought me on not for the typical reason that they were facing a lawsuit or they were fearful that they had a problem.  They brought me on because they wanted people to recognize that the only way that they could achieve full employment with the best and brightest people is to change their old practices and we must not forget that the reason why you're here today and the reason why we're here today is there are many practices of historical proportions that have not put us in the position that we should be in.

I commend the Commission for its aggressive action. I commend you for your E-Race activities and I hope to play a role in helping you achieve great progress in the years to come. Thank you.

CHAIR EARP: Thank you. Vice Chair?

VICE CHAIR SILVERMAN: I want to thank all of the panelists. I have three questions I'm hoping to get through. The first one is for Mr. Gay and Mr. Latham.

I've always believed that employers should adopt proactive measures that address barriers to equal opportunity. But if I understand Mr. Clegg's view, many of the diversity initiatives that Corporate America is using and even perhaps ones that you recommend to your clients are illegal under Title VII. Can you talk to me about where that line is drawn?

MR. LATHAM: The courts have been pretty clear about saying that proactive measures can be taken and the courts have been unbelievably clear about recognizing history. Mr. Clegg I like a lot because he makes the issues very clear. He makes people focus on the differences we have.

Most corporations start with the self assessment and in that self assessment, if they can look at all levels of employment and find that there's equality for minorities and women at all levels, I agree with Mr. Clegg, they shouldn't do anything. When I find a company like that, I won't have any work to do. I have not yet found such a company. Most companies look and say, "Hey, we have a lot of work to do to create real equality and inclusion and our past practices and the past practices of our society have put us in a situation where we are permitted by the law to take actions, to take corrective remedial measures."

VICE CHAIR SILVERMAN: Mr. Gay, do you have anything to add to that?

MR. GAY: I think he's right on the point. I mean, Corporate America, they want to make the changes and it's really making the changes they're doing because they're recognize the shortcomings. When they see in their corporate boards, they see in their management teams, a lack of diversification, they have to address it and that's what we're facing. As Weldon points out, we're not looking at a society where we have a level playing field where they're already there.

So the biggest concern we have is obviously getting them to feel comfortable that they can make the necessary changes to represent what Title VII -- Title VII was geared to eradicate discrimination. Part of that should not just be tokenism. It should be in full representation of the workforce that's available.

VICE CHAIR SILVERMAN: Okay. Jumping off from there, Mr. Clegg, let's assume for the sake of argument that a company met the criteria for establishing an affirmative action plan under Supreme Court precedent, meaning that they have a manifest imbalance in traditionally segregated job categories. What actions could they take in your view to address this problem?

MR. CLEGG: Well, I think that, first of all, there aren't going to be very many companies in 2007 that are going to be able to point to a manifest imbalance in a traditionally segregated job category. You know, it's been 40 years since segregation has been illegal. Most companies, I think, have been conscientious about following the law and I think that using preferences in order to correct a manifest imbalance in these traditionally segregated job categories is not going to be legal in very many instances.

When that does happen, well, the Supreme Court has said that it is okay to use preferences. That is something that it is legal to do.  But I would say, Commissioner Silverman, that even in those circumstances it's not the best thing to do. It is better to take proactive steps to get rid of the discrimination rather than to overlay a layer of discrimination on top of the discrimination.

You can take positive steps to make sure that you aren't discriminating. That was the original meaning of affirmative action and I'm all for that. I think that companies should make it clear to their employees that discrimination is wrong, that they will be fired if they discriminate and enforce those rules. I think that companies should cast a wide net. They should not just recruit through an old boy network. They should send their recruiters not just to the suburbs to recruit but to the inner cities. They should advertise on Spanish language radio stations. They should advertise in nontraditional media. They can do all of those things.

And finally, they should look at their company practices and make sure that nobody is being discouraged from working there; that none of the practices that they have are discouraging the best and most productive employees from working there. I'm all in favor of those kinds of affirmative action and, of course, those kinds of affirmative action can be taken by any company regardless of whether they can show a manifest imbalance in a traditionally segregated job category.

The one thing that it is wrong for companies to do, and I think illegal for companies to do in just about all instances, is to discriminate on the basis of race or ethnicity, that is to treat some applicants and some employees better and others worse because you've decided that you want to have a particular racial and ethnic mix, i.e., you have set a particular quota. And you can dress it up and you can call it a goal or a timetable or whatever you like. But if you have a percentage and you're telling your middle manages, "Look, if you don't meet this percentage you're not going to get your Christmas bonus," that is a quota.


CHAIR EARP: Thank you. Commissioner.

COMMISSIONER ISHIMARU: Thank you, Madam Chair. I wish we had more time as I said earlier. I know Commissioner Silverman wishes that as well. Given that there is lack of time I wanted to make a brief statement.

I've known Roger Clegg for going on 20 years now. I first met Roger when he was a deputy to William Bradford Reynolds who was the Assistant Attorney General for Civil Rights. I was a counsel to the Judiciary Committee at the time and we had many a discussion back in the 1980s about affirmative action and the use of race.

I guess I am struck by how some 20 years later how Roger's views, I think, have shifted somewhat from where the decision point is. The decision point that was attacked during the `80s used to be when the hiring decision was made, you can't use race and the courts have dealt with that over the years. Now it seems to have shifted to the earlier stages, to recruitment and outreach, and I find that profound.

And let me just say that having read Mr. Clegg's statements for the earlier hearing, for this hearing, very detailed, that I profoundly disagree with his analysis and I just wanted to make that clear for the record. I too believe that the Agency should and I hope we have some way to express that.

I have a question though for Mr. Latham and Mr. Gay who deal with these companies day in and day out. The argument that I've heard for years is that people less qualified are being hired and I know from having done hiring myself how difficult the hiring process is and how complicated and how many different layers there are. And I am curious what the experience has been of your clients in hiring people and using legal affirmative action, considering race within the legal parameters that are out there. What has been your experience whether less qualified or unqualified people are being hired?

MR. LATHAM: Very positive experience by my clients. In fact, I have a client that is doing an exceptional job and we're helping him on the next phase of this process. They have wonderful outreach. They have broader recruitment tools. In fact, at the end of the day, they recruit more minorities and women to the entry level positions than any other company I've ever seen, most effective I've ever seen.

But they still have another problem. Five years after having done this so effectively is they track the progress of people as they go through the process. Their people are not being promoted at a higher level. So the simple solution would be to say, “Well, that's because they weren't equally qualified,” and their studies have clearly showed that in most instances the people they're hiring are more qualified and the reasons they're not being promoted relate to prejudices, networks, practices and comfort zones of the people making the decisions. So not only does there continue to be a problem that we have to address to make sure the hiring decisions take place, but we have to change that old boy network to put it in a situation that the most qualified, actual performing people get an opportunity to be promoted appropriately.

MR. GAY: I can't disagree with anything Weldon said, but let me just give it an illustration. Some of us might remember when The Cosby Show first came on. And when The Cosby Show first came on, there was a great degree of uproar about this concept of a Black family with a lawyer and a doctor being the members of the household. It was perceived to be unrealistic and that wasn't just by White America. It was perceived to be unrealistic by Black America because that was not something that people perceived as being something that could be real.

The point Weldon makes is well taken. That's the same problem when you have people looking at people being partners or certain title roles. When people go without some type of incentive to understand they have to -- when you look at understanding how to make a decision, it should be an inclusive perspective. Sometimes the most important qualification is the fact you bring a different perspective and that alone is a very important qualification.

When you define it only by the SATs or the LSATs or the law review quality, you lose something in the equation of significant value. I think in what I've seen in my clients and what I've seen in law firms is that they recognize that by becoming more inclusive they have gotten better, they have gotten stronger, they have gotten wiser people and they've been of better service to their constituencies.

COMMISSIONER ISHIMARU: Madam Chair, I like you, have been doing this for a long time and I just wanted to recognize the presence of Judith Winston who is here with us today. Judy was the Executive Director of President Clinton's Initiative on Race and these struggles about these issues have gone on for a long time as you know and I just wanted to welcome Judy and I'm glad she's here. And with that, I'll stop as my time runs out.

CHAIR EARP: Perfect timing. Commissioner.

COMMISSIONER GRIFFIN: Yes. Mr. Gay, do you think any of the affirmative actions you talked about being, I guess, gotten certain positions through affirmative action, do you think in any of those that the people that were looking to diversify their school, their workplace, they were picking unqualified or less qualified people?

MR. GAY: I think there are those who think that's the case. But then tell me why. When I first started at the NLRB and the push was on. In fact, it was a lawsuit by the Legal Defense Fund against the NLRB regarding race discrimination and when I joined the NLRB it was intriguing to me that all the minorities who worked at the regional office I was in, the Ivy League students, the Ivy League candidates from that organization, were the minorities. So was I less qualified because I went to Columbia Law School and someone went to Brooklyn Law School?

You look at the facts and realities as they always want to say you're less qualified because that's an easy way to say you must be less qualified. Do you know what I mean? That's not the case. It's not the less qualified. It's just an easy route.

What makes “qualified” - and I think it's the most difficult issue raised. People want to say, "I want to hire `qualified' individuals." And that always offends me because what do the heck do you mean by "qualified"? What makes the person qualified?

I think that there's susceptibility to being challenged on that issue because the examples of a lawyer, corporations aren't hiring me to have done well in law school. If I was going to be a professor in a law school, that might be a different story. How well I did in law review might be real important. They want to know can I get the issue, guide them, direct them and win the case and that's what they want me to do. And that's what makes you qualified.

COMMISSIONER GRIFFIN: Thank you. Mr. Clegg, you talk about it's okay to have a diverse workforce, but you can't have what you call a "predetermined or enforceable diversity program." So I guess a lot of times when you're hiring someone you might have two or three applicants that are pretty much the same, especially out of law school. They all came from the same law school. They all have the same grades, whatever, and I say I want to diversify my workforce and so I want different perspectives here. So I am going to pick the candidate that's a female or the candidate that's a person with a disability or maybe the candidate that's Black. So is that wrong?


COMMISSIONER GRIFFIN: Is that what you're saying?

MR. CLEGG: Yes, it is.


MR. CLEGG: And I think that the easiest way to see why at least that raises a legal issue is suppose if the shoe were on the other foot and suppose that --

COMMISSIONER GRIFFIN: It's been on the other foot for a long time.

MR. CLEGG: I'm sorry. What?

COMMISSIONER GRIFFIN: It's been on the other foot for a long time.

MR. CLEGG: Exactly. And so we have a law that makes it illegal to weigh race or ethnicity or sex in deciding who gets hired. You know, your workforce might be one in which African American females are over-represented. There are workforces like that.

Mr. Gay: Where?

Mr. Clegg: Well, actually one of the cases that I cited in my testimony, actually two of the cases that I’ve cited in my testimony involved instances where African Americans were over-represented and where they were discriminated against in the name of diversity and those companies lost those lawsuits and rightly so. Companies should not be taking race or ethnicity into account.

Now you mention perspectives. I think that hiring people who come from different perspectives who have particular areas of expertise where you don't want to duplicate talents that you already have in your workforce, all of those things are perfectly legitimate, but you should not use racial and ethnic and gender stereotypes to assume that oh, "I need somebody that thinks like a Black guy" or "I need a woman because they have a different way of looking at these problems" or "I want to be able to market to Hispanics, so I'm going to hire somebody who has a Hispanic surname."

Again, what if the shoe were on the other foot? What if you were opening a new office in Japan and you said, you know, "We need to be able to market to the Japanese and so I don't want to hire this Black guy. I want to hire somebody who's Asian instead." The Asian guy may be tenth generation American and have no particular expertise about Japan and the African American guy may have a Ph.D. in Japanese studies at Columbia. You should look at people as individuals and if their particular expertise is what you want --

COMMISSIONER GRIFFIN: But I think what I described to you was actually everyone equally qualified.

MR. CLEGG: Then you should flip a coin rather than discriminate on the basis of race or ethnicity or sex.

COMMISSIONER GRIFFIN: I like my colleague, Stuart Ishimaru, couldn't disagree with you more. I did want to ask about diversity and including people with disabilities, but… the light is on.

CHAIR EARP: But the light's on.


CHAIR EARP: Thanks to the panelists. In the Michigan case, then Justice Sandra Day O'Connor mentioned that in 25 years it was a hope or an expectation that there would be no need for diversity. My question to each of the panelists, 30 second your responses, is there a signal in those words or is it just dicta or is there something that we should be reading more into it than just a hope and let's start with Mr. Latham.

MR. LATHAM: I think she gave us a goal. But there is one good thing that happened from the Bakke case to the Michigan case, business has learned a lot. In the Bakke case, there was one brief against affirmative action. In the Michigan case, there were 70 briefs by business in favor of affirmative action. So we've made a lot of progress and the business community is carrying the torch to make sure we have more fairness and equality.

CHAIR EARP: Thank you.

MR. CLEGG: I discussed in my testimony why I think that businesses were willing to file the briefs that they did. I think that what Justice O'Connor says is significant because it shows how uncomfortable anybody ought to be with racial and ethnic discrimination. I think that she clearly was uncomfortable with that kind of discrimination, that she wanted it to end sooner rather than later, and the only other thing I would add to that is of course she was talking about Title VI, not Title VII, and those are two different statutes and they've developed in very different ways and no Federal court that I'm aware of has ever recognized a diversity excuse for discrimination under Title VII.

MR. GAY: Well, fortunately, we get our workforce from the schools. So I'm glad she did talk about it there. It is absolutely necessary and I think what she was doing was recognizing the fact that if we're going to improve the society to get it to where we want it to be, color-blind, what Mr. Clegg thinks it is.

MR. CLEGG: I don't think that.

MR. GAY: Well, we can look at people and we can just say we're hiring strictly from qualifications. It's going to take the efforts and I think the Court recognized it and I think she was pointing out the Court recognized there was a need and compelling interest in society for being able to diversify.

CHAIR EARP: Let the record reflect that the Equal Employment Opportunity Commission will fight discrimination based on race, any race, vehemently. We are opposed and we are committed to eradicating it. We are here for everyone and to protect them from discrimination based on race.

I want to thank the panel and get ready for Panel 3 which is split. Thank you.

CHAIR EARP: This part of the meeting we like to refer to as putting a face to the case. We have our Regional Attorney, John Hendrickson from the Chicago district office and he has with him one of our charging parties, Mr. Giles Jefferson. We also have Bill Tamayo, Regional Attorney in the San Francisco District Office and with him is Beejay Enriquez. John, let's start with you.

MR. HENDRICKSON: Madam Chair, Vice Chair, Commissioners, General Counsel, we ought never to lose sight of the fact that slavery, the Civil War, the long and shameful history of segregation and discrimination on the basis of race and color occupy a special place in our nation's history and development. Race and color discrimination haunt us to this very day. Race and color bias have a depth and persistence. They continue to appear across the spectrum in employment.

When I joined EEOC in 1981, I began work on EEOC vs. Chicago Miniature Lamp Works, a class case in which we were challenging race discrimination in recruitment and hiring. We've continued over the years to challenge race discrimination in recruitment and hiring. Examples are World's Finest Chocolate, Ingersoll and other more recent cases including Carl Buddig Meats and Abercrombie & Fitch, the last being the case by the way which we partnered with the Los Angeles District Office foreshadowing, as we had in other cases, the national law firm concept of the systemic task force report.

Race discrimination has not gone away. We continue to see race discrimination against African Americans who somehow do manage to thread the hiring process in terminations now. On September 15th of last year, our Milwaukee area office filed suit in EEOC vs. Area Erectors. Area Erectors is a sizable player in the construction industry that erects steel and precast concrete in Wisconsin and in Illinois. The charging party is a Rockford Illinois ironworker, Giles Jefferson, who is here with me today.

Earlier in 2004, our Milwaukee office had successfully pursued a claim that Mr. Jefferson was a victim of discriminatory harassment and discharge by another contractor. When his union sent Mr. Jefferson to a Jamesville, Wisconsin construction site in June of 2004, news of his previous filing apparently preceded him.

According to Jefferson, on the third day on the job site, an Area Erectors foreman approached him and told him that filing a charge of discrimination was a no-no. Later the same day, Jefferson was terminated and EEOC's administrative investigation revealed he was replaced by another worker from his own local who continued to work on the same job site for another month. That same investigation concluded that not only was a number of Blacks employed by Area Erectors insignificant, in the single digits, but their life span on the job was very short indeed.

For example, the data indicated that for one ten month period in 2003 and 2004, the median number of days worked by White employees was 65 days. But for Blacks, it was only 18.5 days. Why was that? Our position in the litigation is because those few African Americans who did manage to get referred by their union and to get hired were thereafter being terminated because of their race.

The point I want to make this morning is that the issues of race and color discrimination continue to be at the center of what we do and at the top of our agenda. But notwithstanding our successes in challenging such discrimination, it remains invasive. Equality of opportunity in access to the workplace is not the same as equality of opportunity in the workplace.

Discrimination in the areas of pay, promotion, job assignment and terminations continues. Earlier this month we received final approval from the Federal District Court in Rockford of a $5 million consent degree designed to remedy compensation, training and job assignment discrimination against African Americans as well as Hispanics and Asians and women.

Racial harassment continues to be a problem. Nooses are still hung from factory piping, placed in lunch boxes and drawn around the necks of photographs of black children. My sense is that litigation remains essential as does broad public dissemination of the results of our litigation program.

I support EEOC's mediation program and the extraordinary results that it has achieved. I'm a proponent of vigorous technical assistance and outreach. I know that skilled investigations and conciliations are absolutely critical.

But in the end, EEOC is a law enforcement agency. When preventive and voluntary measures are ineffective or inappropriate, we must challenge employment discrimination on the basis of race in the Federal Courts. If we do that, I believe that we will have the support of the American people. I believe that the Civil Rights Act of 1964 really did reflect a national consensus against employment discrimination. I believe that that consensus endures to this day. We at the EEOC are privileged to work toward that day when that consensus approaches reality.

CHAIR EARP: Thank you.


CHAIR EARP: Mr. Jefferson.

MR. JEFFERSON: My name is Giles Jefferson. I live in Rockville, Illinois. I'm a journeyman iron worker and a member of Iron Workers Union Local 498.

In October 2004, I filed a charge of discrimination with the Milwaukee EEOC office because I was fired by a building contractor - the name of the company is Area Erectors - from a construction job in Janesville, Wisconsin. I believe I was fired because I am Black and because I had once filed a charge of discrimination against another employer and word about that spread amongst construction workers.

What I want to say about discrimination. Both the contractors and the unions have excluded Blacks for so long that they seem to effectively cooperate in systematically excluding Blacks from apprenticeship programs. Based on my own personal experience, I can say that Blacks who have been selected as apprentices are discouraged from continuing. Any time an apprentice complains about discrimination he becomes a target for harassment and hostility.

Many Blacks have been so overwhelmed with harassment that they become discouraged and give up. Because of discrimination I was not able to finish the iron workers dream and training in a reasonable length of time. I was often unfairly laid off and forced to travel 100 miles to my job site. In addition, I was assigned to menial and laborious tasks that were unlikely to help me effectively upgrade my skills. I encountered racial slurs and threats. A hangman's noose was placed in my lunch box.

What I think needs to happen in order to bring about meaningful change, the government will have to press the contractors and the unions to cooperate to fairly include Blacks where they have historically cooperated to exclude them. The unions need a standardized apprentice recruiting procedure which can be monitored to ensure fairness. The government needs to address the union's current policies and procedures to ensure that they meet government guidelines. There needs to be more of a collective effort so that government officials can check the records of both contractors and unions when contracting building and construction are taking place.

The trade unions and contractors have become such a good-ole-boy network that the discriminatory practices have become common place. Thus, minority workers are discouraged and often feel that they do not have a fighting chance to oppose discrimination. Discrimination in construction is not just a local problem. It is a national problem which urgently needs to be addressed.

CHAIR EARP: Thank you.

MR. JEFFERSON: You're welcome.

CHAIR EARP: Mr. Tamayo.

MR. TAMAYO: Thank you, Madam Chair and Commissioners for inviting me to participate in this hearing today. I'm very honored to be testifying with our brave charging parties.

Persons of Asian descent constitute over 50 percent of the world's population, but we are only four percent of the United States population, a statistical disparity created by clear racial intent. Our nation's early immigration laws explicitly barred persons of Asian descent from entering. The Alien Land laws prohibited us from owning land and Congress prohibited Asians from naturalizing.

We can't forget that the Chinese Exclusion Act of 1882, supported by Samuel Gompers of the American Federation of Labor and white unions, was extended indefinitely after the Statue of Liberty was dedicated in 1886 to welcome Western European immigrants or as Law Professor Bill Hing bluntly says, "It's no accident that the Statue of Liberty faces Europe and has her back to Asia and Latin America." Ironically, Lady Liberty, with broken shackles at her feet, was a gift from France to the United States for ending the Civil War and slavery. Yet racism continued to drive immigration policies and many other policies of our nation.

And because of this legacy of discrimination, the specter of discrimination remains and the ignorance about Asian communities continues to permeate the workplace. For Asians and Latinos, race and national origin discrimination are inseparable. From the internment of 120,000 Japanese Americans, 70 percent of whom were U.S. citizens during World War II, to the segregated schools in the southwest, to denied opportunities and promotions in the public and private sectors, to anti-Asian, anti-Latino violence; racism has manifested itself in many ways.

Unfortunately in a period when many are questioning the presence and rights of non-White immigrant workers, some Americans practice what I call racialized patriotism; for they believe it is their patriotic duty to vilify, harass and otherwise harm those who look like some of us in this room. In addition, the nearly 1,000 post 9/11 EEOC charges that we've received and the cases that we've filed and the millions of dollars we've recovered underscore this dynamic.

Unfortunately the tensions created by the global economy and the global migration of labor will also unleash racist rhetoric and actions as Americans attempt to deal with the loss of jobs.

In California, Latinos are 35 percent of the state population and Asians are 12 percent. They are over-represented in the service industry and low wage jobs and are very vulnerable, but our charges have yet to reflect those demographics and there is much work to be done.

Of the current 300 million people in the United States, 14 percent are Latino, 13 percent are African American and four percent are Asian. The Latino labor force will be 47 million in 2050. The Asian labor force will be 16 million in 2050. Thus, EEOC must retool and adjust in order to properly serve these emerging communities. Having the linguistic and cultural competencies needed to do the job is paramount.

In spring 2002, my office in San Francisco received charges from 12 Filipino American game testers who had been similarly fired from Sega, the game maker, after a non-Filipino employee undergoing possible discipline had complained that he believed his Filipino supervisor was giving favoritism to her relatives. Our investigation revealed that a Sega manager then instructed the unit head to drop a chart, the smoking gun, so to speak, and highlight the names of the Filipino workers, none of whom was related to the supervisor.

Upon orders from Sega, Spherion, the contracting agency that employed them, told the workers on a Friday, almost five years to the day, not to show up for work for the following Monday. Several of these young men had been working competently at Sega for years. Ironically, the Spherion employee who had to deliver the message was Filipino and he was instructed to find replacements. Here we were on the outskirts of Silicon Valley in a city that's 35 percent Asian in a Bay area community of 400,000 Filipinos in the 21st century and Filipinos were summarily fired less than a mile from the EEOC district office.

The charging parties were devastated. They had played by the rules, they were college students, good employees, the sons of immigrant workers. They had helped to build Sega's wealth and couldn't believe that this was happening in San Francisco.

We filed the lawsuit against Sega and Spherion, and in spring 2004, we announced a settlement of $600,000, $456,000 to be paid by Sega and $114,000 by Spherion. As part of the consent decree, Spherion adopted EEOC's Guidelines on Contingent Workers as part of its official nationwide policy and eventually Sega offered permanent jobs to some charging parties.

But this victory could not be achieved without the courage of brave victims like Beejay Enriquez, one of our speakers. Thank you very much, Beejay?

MR. ENRIQUEZ: Good morning, Madam Chair, Commissioners. My name is Beejay Enriquez and I am an assistant producer at a video game publisher in San Francisco. The name of the publisher I'll let you know at the end as it pertains to my story.

So working in San Francisco in the heart of downtown, I could walk down any street and find a Chinese restaurant, a Mexican taqueria or an Italian place. So when this incident happened in 2002, I was in the mindset that I'm safe in San Francisco, a Bay area resident, a diversified culture where we're trained - may the best person win, your merits will get you far. And at Sega at the time, I was - three weeks before the situation happened - I was just returning back from representing the company at the Super Bowl in New Orleans, promoting their products, speaking with people, interacting with potential customers. Three days before the incident happened, I was also offered command or the issue of a new project and was supposed to see it all the way through. So I was onsite when this incident happened and I was surprised to find out that I just received this project and now I'm no longer needed and I was lucky to be there at the time because a lot of my co-workers were at home, were unaware of what was going on.

Because of a call I made to figure out what was happening, I received a list of the names and I looked at all of the names on the list, all of them were Filipinos, all of them were removed from the department. The entire department was, for lack of a better phrase, Filipino-less after this incident.

So I got to thinking and my mind was, I've never been disciplined before, I've received many commendations and great opportunities to work within the company and now none of those mattered. I wasn't the guy who went to the Super Bowl. I wasn't the guy who was given the project. I was a checkbox which was checked off Filipino, bye-bye.

And as I thought about this, I felt almost embarrassed of who I was because I could not have done a better job according to what people were telling me. I could not have shown up earlier; I could not have worked later. The only thing that was the criteria for them to remove me was who I was and I could not change that no matter how much I tried or wanted to at that moment because I really wanted to be a part of this company and it made me almost embarrassed to be who I was because why am I this, why could -- maybe if I was a different class I would not have been in this situation. My hard work would have paid off and I would still be there thriving.

And then along those lines, I realized, is it because I was an under-represented minority, Filipino, Asian, that it was perceived that they could get away with this, that because I wasn't a more prolific member of a larger minority that they were less afraid to perform this action? And then I realized I could not stay down and lie down like they expected me to and take this situation.

So I brought it to the EEOC and because of that, because of the actions of the EEOC, I have been rehired at Sega as an assistant producer on several upcoming prolific video titles and Sega as a responsible company has rectified a lot of the mistakes, if not all of the mistakes that brought us to this point. The administration responsible for the situation, none of them are there. They're acknowledging all of my contributions to the company and promoting me and commending me and letting me know that I am doing a good job.

So in closing, I don't want anyone else to be in that position where they're afraid or they're embarrassed of what they eat, what language they speak at home, who their grandparents are. To doubt my own blood, my own father, my own mother, and almost regretting who I was, I don't want to see anyone do that again and hopefully with actions like the E-Race Initiative, no one else will have to go through this again. Thank you.

VICE CHAIR SILVERMAN: I think I speak for my fellow Commissioners. We sit here in Washington and we see your stuff on paper come through at one point or another or we see it in the press clips. But to actually hear you speak is just so powerful and reminds us why we come to work every day and what we do -- and I know that our field staff has this experience all the time. But it is a gift for us. So thank you for bringing these very brave souls to come to testify before us. And I also wanted to thank our regional attorneys who as well as your colleagues around the country on both legal and the enforcement side for the fine work that you do. Thank you.

COMMISSIONER ISHIMARU: Thank you, Madam Chair. Bill, you’ve raised the issue of Hispanics, Asians, immigrants as new groups to this country’s growing populations and it's not just in the Bay area, it's all over the country in places where you might not think folks would be and I found that in my travels as well.

I'd be interested -- and if you look at the charge receipts, the complaints that the Agency gets for these various populations, they are relatively low and certainly far lower than you might expect given where the population figures are.  I'm interested in the steps your office is taking and, John, as well, to deal with the under-reporting, to deal with people not coming forward when in fact situations are existing out there.

MR. TAMAYO: That's a very good question. One of the things we need to recognize is that not everybody has equal access to the EEOC and consequently, our charge intake is not an indicator of the measure -- it's really not an indicator of what the discrimination is that's out there. If people who don't speak English come to the office and we don't have the language to serve them, they're not going to come and the word's just going to spread out in the community that, ‘well, this office doesn't have anybody that speaks Cantonese or Vietnamese or etc. and we have that problem in San Francisco and in our San Jose offices.

So one of the things we've been trying to do is at least try to do as much outreach, hire folks when we can who speak these languages but make it a top priority as we're going to do in our next round of hires and we've had folks who speak these languages but for one reason or another, they didn't stay with us. But that was just one or two investigators. We need a whole lot more so that we can serve these communities, and I think the other side of being linguistically competent is for our own staff to be culturally competent to understand what these communities are about. So we invite guest speakers to come in, educate our staff about some of the stereotypes that happen, about these communities, what really goes on, what are some of their experiences.

With regards to low wage workers, that's even a harder challenge and our office has made some strides, particularly with farm workers. But what we've been able to do there is partner with all the community groups who are advocates for these communities and at the same time publicize like crazy every victory and settlement that we get so that people know you can come to the Federal Government. And I'm very aware, I used to do deportation defense. Most of the people in these communities can't believe that a government agency would actually help them sue their employer. That's totally anathema to what they're used to understanding about what governments do. So we have to bridge that gap too. So really it's just reaching out and partnering with everybody that we know and educating ourselves about those issues.

COMMISSIONER ISHIMARU: Could you also touch on the policy on undocumented immigrants as well?

MR. TAMAYO: I actually spoke on this for the Bar Association of San Francisco. If you look at the record of litigation of the EEOC on the issue of undocumented workers, our record is extremely stellar. We litigated the cases that said undocumented workers, reaffirmed that undocumented workers were covered. In the case of EEOC v. DeCoster Farms, where we recovered $1.5 million for five women, who had been raped repeatedly by their supervisors and co-workers, who were all trafficked in from Mexico, they were here illegally. Then Chair Dominguez said in announcing this settlement that these women may have been undocumented but that's not going to stop us from getting all the money that they're entitled to.

Since then, as employers try to use immigration status, immigration law or the immigration service as a weapon in their arsenal, EEOC has consistently filed motions for protective orders to bar unlawful questioning about immigration status because really what the defendants are trying to do is basically chill out the charging parties, deprive us, the Government, of its witnesses and essentially the employer wins. So we've been vigilant, I know John's office in Chicago and other offices around the country have filed motions in limine, motions for protective orders and we've won all of them.

COMMISSIONER ISHIMARU: Thank you very much. Thank you, Madam Chair.

COMMISSIONER GRIFFIN: Giles, you actually talked about the issue of discrimination in the construction and trade industry as a national problem and I think you're probably right. And I wanted to ask John and Bill, will information like this help with our systemic enforcement initiative in taking on an individual case like this and looking at it in a more national way?

MR. HENDRICKSON: I think so. I mean I think whenever you see a -- I don't think any of us at least in Chicago are of the view that Giles is the only African American victim of that employer and that union. I think our experience is usually that, Giles can probably speak to this himself, is where you see that kind of discrimination against one, you see it against many. The data we've already looked at, I’ve compared 65 days on the job for Whites basically against 18.5 for African Americans.

So Giles' experience I think is the tip of an iceberg with that employer and that union. But I think the construction industry, at least in the Chicago area, the Midwest area, has been -- the problems of racial discrimination in that industry have been very serious for a very long time and we're attempting to look at it in a more systematic way for obvious reasons now. I hope we'll have some success there, but I'll tell you, it's going to be very long, hard slug. It didn't start yesterday and it's not going to be solved tomorrow.

MR. JEFFERSON: I think one of the key components to really getting to the crux of the problem is it would be nice if the EEOC could create a plan of action by getting work members that work for the government to infiltrate some of the different jobs sites in the trade. That way they would be able to get firsthand gainful knowledge in terms of what actually goes on, I mean just like the CIA.


MR. JEFFERSON: Operatives, you know.

MR. HENDRICKSON: I don't know where this is coming from.


COMMISSIONER GRIFFIN: John, are you getting a different job that we don't know about? I can see you with a hard hat on.


MR. HENDRICKSON: Maybe by tomorrow. I don't know.

MR. TAMAYO: It's very easy for John to go undercover.



CHAIR EARP: Thank you so much, both to our Regional Attorneys and to Beejay and to Giles. I know I don't have to tell you this, but if anything happens to you when you go back to work as a result of your being here today, you let us know. Thank you.

(Chorus of thank yous.)

CHAIR EARP: Panel III, Part 2.  On our final panel, we have Regional Attorney, Anna Park from the Los Angeles office along with charging party, Brittany Moody and Bobby Canino, from the Dallas District Office and Charging Party, Jagdish Prajapati. Anna, let's start with you.

MS. PARK: Good morning, Madam Chair, Vice Chair, Commissioners, General Counsel. My name is Anna Park.  I'm the Regional Attorney for the Los Angeles District Office. Our jurisdiction covers not only a vast geographic region, but one that is densely populated with over 24 million people in just Southern California alone. I want to start by thanking you for allowing us the opportunity to discuss the issue of race and color and the impact it has today.

It is sad to say that despite the passage of time, race discrimination remains alive and well. The face of race and color discrimination is changing, however; it is no longer operating under, as people coin, a black/white paradigm. The victims are young and old. The victims are of all races whether they are Blacks, Hispanics or Asians, as are the perpetrators. They come in all faces and colors.

It has become much more complex. By way of example, the LA Office resolved two cases in which employers gave hiring preferences to Hispanics while failing to hire qualified Black applicants. In EEOC v. Zenith Insurance, that involved a mailroom clerk position where the individual was told we don't have a position, yet a temporary agency was able to send him there to fill that position. In that case, we found a class of applicants who were qualified and yet not hired. The decision maker was Hispanic. That case resolved for $180,000. But what's more important than the money was the broad comprehensive injunctive relief that the company wholeheartedly embraced training over 7,000 of their employees.

EEOC v. Farmer John, over a period of one and a half years, that company hired over 679 employees into entry level warehouse positions. Every single hire was Hispanic. Despite qualified Black applicants, Farmer John failed to hire a single non Hispanic employee. Again, the decision makers were all Hispanic.

A sad trend we're seeing is also that very young people are experiencing discrimination, often times the first job that they may ever hold. I'm honored to introduce today a very brave young lady, Ms. Brittany Moody, who was sadly a victim of discrimination at a very young age of 16. Even though she herself was not applying for a job, her first experience in the workplace was forever tainted by racism, something she should never have experienced. In Ms. Moody's case, even the most innocent act of picking up an application for a friend thrust upon Ms. Moody the unfortunate reality of race discrimination. The final point I want to stress is not to forget that women of color continue to suffer from what we coin "compound discrimination." In EEOC v. Caesar's, women, Hispanic primarily, women of color, were forced to have sex operating out of a sex room. In EEOC v. Rivera Vineyards, where the LA Office recovered over $1 million for a group of farm worker women, many of whom were Hispanic women, they were subjected to sex harassment. We had one brave woman who came forward who was raped by the foreman.

In EEOC v. Abercrombie & Fitch, where the LA office and the Chicago office partnered together to recover over $50 million for the company's failure to recruit, hire, promote and retain minorities because they did not fit that "all-American look" that defined Abercrombie, unfortunately that look was only defined to be white men. In the end, minority women, particularly Blacks and Hispanic women, were the most impacted. EEOC was instrumental in ensuring that special hiring goals were instituted in the consent decree to ensure hiring of not just women, but women of color.

We thank you, Madam Chair, for launching the E-Race Initiative because it is one that remains relevant today and even more important with the ever-changing demographics. As society attempts to downplay the significance of race, unfortunately the cases that are being litigated show that race discrimination is thriving.

The EEOC remains vigilant to be color-blind in the enforcement of our statutes and to enforce Title VII until the day that race discrimination no longer exists. Until then, we remain ever vigilant to root out discrimination in the workplace. Thank you very much.

MS. MOODY: Hi. My name is Brittany Moody. My first and thankfully only experience with the EEOC started in 2002 at the age of 16. My friends, Hannah, Samantha and Hannah's mother, Theresa, and I were at a church function at the beach. On our way back we stopped at the local Quiznos for something to eat.

After getting our sandwiches, my friend, Samantha, saw the "Now Hiring" sign which was a large sign posted in the window and wanted an application, but after coming from the beach, she didn't think she was professional enough to go in and ask for it. I went in and asked for an application from the owner, Ava. She indicated that they were no longer hiring.

I went back outside and told my friends that they were no longer hiring. About ten minutes later, Hannah went back in, because she was expecting to get the same response from the same person. She then was going to tell them to take the "Now Hiring" sign down so that applicants won't go in and find that there were no applications.

To her surprise, she received an application. She came back outside with the application. At that point, we talked to her mother, Theresa, who was pretty much outraged because it was blatant racism. We went back inside to confront the owner and Theresa asked her why she didn't give me an application. She said that they were no longer hiring. She then asked, “well then why would you give it to my daughter, Hannah?” She said, “We're only hiring one person, so we only gave one application.”

She then said that I would have to take a two hour writing test because I would have to be able to read the instructions on the back of the machines in the back, indicating that somehow because of the color of my skin I couldn't read the instructions -"push this button here." It was interesting.

At that point, that was pretty much enough and Theresa indicated that we were going to report her. We went home and I called my mom, I called Samantha's mom and Samantha's mom called the Quiznos and talked to the owner and asked her why she treated me so poorly. And the owner kind of laughed a little bit and said, "Oh, I know what this is about. We have a brown girl here,” and she turned around from the phone and said, "You're a brown girl. Get on the phone and tell them you're a brown girl." That was their token person, because they had one African American employee, that somehow made it okay.

After getting off the phone with Samantha's mom after she told us that, we called Quiznos corporate to let them know what their franchise owner was doing and then Theresa told me about the EEOC and we filed a suit at that point.

CHAIR EARP: Hello Bobby.

MR. CANINO: Okay. Madam Chair, Vice Chair, Commissioners. I have to -- I'm talking about two different kinds of areas in my remarks that I have to -- I feel compelled to go back and say, "Please also take a look at the written remarks that I submitted because I don't want to diminish in any way that in my jurisdiction we have some very egregious kinds of traditional Black and White race discrimination that involves the hangman's nooses, involves the KKK impersonations, posters, referring to businesses as plantations and keeping the Blacks out of the visibility of the public and those kinds of things are still very much alive, still going on. We call them "traditional." It's kind of sad, isn't it? But that is still very much a part of the work that we do and I'm not going to go into in detail today, but I don't want to lose sight of that as well.

In addition to those most recognizable cases of offensive behavior towards African Americans, we've also recently seen cases presenting race and color circumstances and fact situations that are not quite so familiar. For instance, we're all very aware of the theory of same sex harassment as a form of discrimination. But until recently, we had not had the occasion to pursue a case of same race harassment as we did in the case of EEOC v. Renaissance III. In the Renaissance case, African American employees were humiliated, verbally abused and even physically threatened by their director, who as it turned out was also African American. Daily verbal assaults, intimidating references to slavery and degrading comments comparing them to the “better Whites” were always punctuated with the ever-present "N" word.

Now we know that for the past couple of years there's been a social and cultural debate, dialogue, whatever you want to call it, about the appropriateness or the positive or negative impact of the "N" word as exchanged between people of the same race. But when we looked at this case, we made the determination that there should be no controversy about that kind of conduct. When we met the people and we heard about their extreme pain and their embarrassment to be called these names on a daily basis, it was very clear to us the sensibility of the laws that we enforce that actually focus on the nature of the wrongdoing irrespective of the race of the wrongdoer.

That's one of the -- I don't know how many cases like this we're going to see, certainly, sometimes I think I've seen everything and I'm always surprised.

I want to move onto the next distinct form of workplace discrimination and exploitation that has surfaced in recent years and that is the very tragic example of human trafficking. These are cases in which the motivation for the discrimination is very simply greed. It's a willingness to dehumanize people for the sake of the bottom line.

Now the State Department reports that of the millions of people who are trafficked from places like South Asia, East Asia and Africa, a good number of them are making it to the shores of the United States and we've seen some of those people. Race, color, national origin, language limitations and economic disadvantage are the common coordinates that are being used to target these groups of people by the traffickers and the employers.

In Chellen and EEOC v. The John Pickle Company, which is a case that we prevailed on, the EEOC brought and won on behalf of skilled workers from India. We found that these people from India were chosen by a U.S. company because of the company's condescending belief that people from that part of the world would surely appreciate and accept even the most dismal and awful working and living conditions. The president himself summed up his recruitment plan alluding to the race and color issue when he says and these are his words "Bring them over here and give them a place to sleep, a little bit of food, pay them $2 or $3 a hour and they think they're getting a deal. Hell, that's cheap labor. They will work harder than any white son-of-a-bitch you can find here."

The Indians weren't paid minimum wage or overtime, they were subjected to harassment and forced into servitude and substandard living conditions. Job assignments to these highly skilled individuals were of the nastiest and most menial assignments. They were locked up, deprived of food; they were deprived of income obviously, deprived of privacy, medical attention and ultimately their dignity.

And to show the animus is based on color, I thought it was interesting that during the course of the litigation, we had an example of an individual, Ambrose Panacal Pirical, who was described as the darkest skinned of the group of 52 and it was Ambrose that was selected to replace the people who were doing the janitorial work who we also found happened to be the African American workers. This is not an isolated incident. The dark-skinned Indians are no different than the dark-skinned welders who came from Thailand as part of the EEOC v. Trans-Bay Steel case that was just resolved, I think it was last month or December with very similar fact pattern.

But these cases tell us that the exploitation of workers from India and Asia - what this does is it reveals the reality that race and national origin and color and other earmarks of ethnicity are inextricably intertwined when it comes to issues involving foreign workers. Further as the Court pointed out in Pickle, technical classifications like -- and I don't understand this, but somehow Indians are considered Caucasian. Even the court said, "These individuals are going to, nevertheless, be protected by the statutes that we have that prohibit race-based discrimination."

I am firmly convinced -- as I close, I want to share with you that it's my belief that just as slavery, which is a sad part of our nation's history, was about race then; this exploitation and forced labor and as it's called "modern day slavery," is just as much about race today. Thank you and I'm very proud to bring to the Commission my friend now, and one of these individuals who I got to work with during the course of this litigation, Jagdish Prajapati.

MR. PRAJAPATI: Thank you. Thank you, Madam Chair and Vice Chair and the Commissioners. My name is Jagdish Prajapati. I'm from the State of Gujarat, India, South Asia. Thank you for inviting me here today. It is an honor for me to come to Washington and speak, not only for myself, but also for the 50 men and their families and perhaps for many other people of different races in the countries who come to work in the United States.

I'm now living very happily in Tulsa, Oklahoma with my wife and two children, although my home is only a few miles from the warehouse where I had to work and to sleep behind the locked gates. The journey was very long and difficult. But I understand that sometime before we enjoy our freedom there is a sacrifice.

Our story is one that is about hope, then sadness, then joy. We all started in India excited about our chance to come to America to work with the proper authorization and be able to maybe bring our families to join us if we did a good job. That is what we were told by the people who brought us here. We came from different states in India and spoke different languages. Many of us working for the international companies had a permanent job and a year of technical experience in our trades. But we were chosen to suffer bad treatment and injustice because we were from India. We were told by the company that Indians were chosen because we come from the part of the world where many people are poor and that we should be happy and not complain about whatever happened to us.

We did not know the laws of the United States when we came, but we did not think that we should be forced to work for $2 or $3 an hour. Workers who were not Indians were paid about $10 to $12 per hour to do the same work. Workers who were not Indian led normal lives outside of the work, but we were not allowed to leave the facility when they went to their homes, and denied worshipping on the weekends and the holidays.

We were 50 men all in one small warehouse building with the broken toilets, small beds, close together, nowhere to put our personal things and no privacy. We had to work near the heavy X-ray machine with no protection and some men were not allowed to go to the doctor when they were injured or in pain.

The company -- I'm sorry.

CHAIR EARP: Do you want to go on or do you want to just have your comments submitted for the record?

MR. PRAJAPATI: I will do that.

CHAIR EARP: Okay. Thank you.

MR. CANINO: I think when he says he will do that -- Do you want to finish or just leave it?

MR. PRAJAPATI: I'm done.

CHAIR EARP: Thank you. Vice Chair?

VICE CHAIR SILVERMAN: I just want to thank again Brittany and - I'm not going to pronounce - Jagdish. You do understand that without you coming forward and being brave enough to step forward, we can't fulfill our mission of eradicating discrimination. So I really appreciate your coming forward.

I know that you mentioned, Brittany, that you found out about EEOC through one of your friend’s mothers?

MS. MOODY: That's correct.

VICE CHAIR SILVERMAN: And the Chair, when she was Vice Chair, headed up a Youth at Work Program and part of this outreach program to youth to let them know about their rights and responsibilities under EEO law. Do you have any other thoughts? When you talk to your friends, maybe you met them after this time period and you told them about this, did they seem to know about the EEOC and what we do and do you have any thoughts on how we can get the word out there because obviously what you dealt with in your first job is such a big deal on how you think of yourself and the world and what you can contribute and it's so important that we get the message out there that this behavior is illegal and we are here?

MS. MOODY: None of my friends ever heard of the EEOC. Most of them didn't have jobs. Most of them were looking for summer jobs at that point. I think that in terms of how to get the word out there potentially at schools when we have to have a working permit just to be able to go, I think, that if at some point when we got the permit that that was included in the material there. Because I don’t think that Togo's and Quiznos and -- because I worked at Togo's after trying to get an application for Quiznos. So I don't think that the information that they're giving properly shows us where to go if something were to happen and I think that starting at the schools and starting with that part of education versus trying to get to all of the companies and all the companies that are not corporate or are not franchised owned, and don't necessarily give you all the correct information. I think that that might be a start.


CHAIR EARP: Commissioner.

COMMISSIONER ISHIMARU: Thank you, Madam Chair. Let me say that when I worked at the Department of Justice back in the `90s, human trafficking was one of my issues as well and I would hope that our work in the human trafficking area, and both Mr. Canino and Ms. Park have recently completed cases involving this, that we re-institute more coordination with the Department of Justice to make sure that criminal prosecutions take place against this because these activities are frankly outrageous and as you point out. I think we've done excellent work on this and I hope -- unfortunately we'll have to do more in the future, but I hope the coordination with the people who prosecute these cases will go on in the future and that we can get them interested in going beyond the traditional types of trafficking cases that they've been prosecuting mainly involving sex.

Anna, I have a question for you. Two of the cases you talked about, Zenith and Abercrombie & Fitch, resulted in consent decrees with hiring goals. Can you tell me what these goals are and why these cases were good candidates for this type of relief?

MS. PARK: Certainly. Particularly at Zenith where you're talking about positions where one group is exclusively being hired, hiring goals which essentially just asking the company to hire a certain group to offset their past practice of discriminating is a good tool to bring to the company's attention that this is important. Oftentimes, it's the company is either actively discriminating or just passive, not realizing they have people under them that are committing violations of Title VII. It brings to the forefront their priorities that this is important.

It's always coupled with training which is critical. What was interesting in both cases because the decision makers were Hispanic, both companies articulated "What's the problem?" And so we had to spend a lot of time stressing training that you can't discriminate and that it's wrong and particularly in Abercrombie and Fitch where in that case because it was so linked to their marketing, this American look, the Abercrombie look, that if we looked at if they wanted to offset that, what they would have done was hire white women, and they would have at the end of the day, met the hiring goals.  So it was imperative that we had, which was sort of unprecedented in that you have separate goals for women of color because they were the most impacted in this case.

COMMISSIONER ISHIMARU: Let me just say, Madam Chair, that I was out at the press conference where the settlement was announced and the Abercrombie look transcends racial lines and these young people came out behind us and they certainly didn't look like me. They were toned and buff and had the look except they were also people of color, it was really outstanding work that the Los Angeles and Chicago offices did.

CHAIR EARP: Thank you. Commissioner.

COMMISSIONER GRIFFIN: My question is for Bobby and Jagdish. How did you find out about the situation or how did you find us at the EEOC? And what can we do to reach out to more groups who are experiencing this? I know Stuart is suggesting work closer with DOJ on this, but are there other ways that we can find people that are affected in these ways?

MR. CANINO: It's interesting the way sometimes you run across things. As much as sometimes you say, is there some point at which you're doing too much outreach? I found out about this case at an outreach, speaking to someone and being the embarrassed regional attorney who when asked, "I bet they're really talking about that one case out there with the Indians that are all locked up. Right?" And I said, "What case?" "It's the Pickle one." So I’m thinking they're bottling pickles somewhere.

But having to go back to the office, look to see if we have any charges pending. Originally, they didn't know to file charges. Their attorney didn't know that they needed to file charges, in fact, their Title VII charges were dismissed from the civil action. And so, by then the case is a year down the road. You're stumbling across something like this because of the nature of it. It's not going to be public, you're not going to know about it in the normal mainstream ways of learning things.

And so fortunately, the judge was kind enough to let us in at a very late date. I think we can lend some expertise to a very complex issue because of what Commissioner Ishimaru was saying, which is Department of Justice doesn't pursue all of these cases. They exercise some discretion in judgment and because their burden of proof is different than ours, it became more important for us to try to advance it.

MR. PRAJAPATI: Let me finish my last paragraph. Sorry about that. We are learning much about the race and discrimination law to protect all the workers. Human trafficking can be race discrimination. It can happen to women and young people because of sex. But I'm here to prove that it can also happen to men because of race and nationality. We understand that because of EEOC laws we work in America with the good companies. Many of us now have homes and families with us. The experience we have will make us better people and will give us something to teach our children.

In fact, I have two children. One is a six year old in new school named Rosa Park Elementary. It is interesting, Mr. Canino tells me that Rosa Park was an important person in the fighting for the civil rights for the people of color in this country. I am proud to tell you that my other child is a U.S. citizen born in Oklahoma and I myself have such a freedom that I am able to come to you today to tell my story without fear and sadness but with the hope for the future. Thank you.


CHAIR EARP: Well, thanks to all the panelists. Each panel has given us something to think about and has informed the work that we still have to do. Thanks also to my fellow Commissioners, my co-partner and collaborator on E-Race, Commissioner Ishimaru. It's been a long morning.

Before we adjourn, I have one comment I think that our communications staff wants to make.

Charles Robbins: Thank you, Madam Chair. Immediately following the meeting, we'll hold a media availability, a news conference for participants and for credentialed media, those who are here with us today and some other folks who are with us by speaker phone.

So what we'd ask is all our guests are most welcome to stay, but we'd ask please if you're going to do that to stay silent. If you'd rather have conversations, we ask you please to do that outside. Thank you, Madam Chair.

CHAIR EARP: Thanks again. Please consider signing the Birmingham Pledge if you haven't already and check out of The Race and Color Manual online. Thank you so much.

PEGGY MASTROIANNI: Motion to adjourn?

CHAIR EARP: May I have a motion to adjourn?





CHAIR EARP: Thank you.

(Whereupon, at 12:08 p.m., the above-entitled matter was concluded.)

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