Commission Meeting of April 19, 2006
CARI M. DOMINGUEZ, Chair
NAOMI C. EARP, Vice Chair
LESLIE E. SILVERMAN, Commissioner
STUART J. ISHIMARU, Commissioner
CHRISTINE M. GRIFFIN, Commissioner
CHAIR DOMINGUEZ: 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.
At this time I'm going to ask Bernadette Wilson to announce any notation votes that have taken place 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 would 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.
During the period April 1, 2006 through April 17th, 2006, the Commission acted on four items by notation vote:
Approved litigation on one case;
Approved revisions to the Privacy Act System of Records; Approved acquiring expert labor economists statistician services; and,
Approved the EEOC Compliance Manual Section on Race and Color Discrimination.
MS. WILSON: Madam Chair, it is appropriate at this time to have a motion to close a portion of the next meeting in case there are any closed meeting agenda items.
CHAIR DOMINGUEZ: Thank you, Ms. Wilson.
Do I hear a motion?
VICE CHAIR EARP: So moved.
CHAIR DOMINGUEZ: Is there a second?
COMMISSIONER ISHIMARU: Second.
CHAIR DOMINGUEZ: Any discussion?
CHAIR DOMINGUEZ: Hearing none, all of those in favor, please say aye.
(Whereupon, there was a chorus of "Ayes.")
CHAIR DOMINGUEZ: Opposed?
CHAIR DOMINGUEZ: The ayes have it, and the motion is carried.
Well, good morning again. It really is a great pleasure to welcome you, all of our visitors and all of you who are here, both physically as well as those who are throughout the Commission listening to our proceedings this morning through closed monitoring.
At our last Commission meeting of two weeks ago on the Systemic Task Force report, we marked a historic first in the agency's use of technology because we video‑streamed live to the field for the first time. And today we're again sharing that type of virtual meeting technology with our colleagues in the field. So, again, I want to extend a welcome to our colleagues in the field. And we really hope to do this on a regular basis.
It’s a great pleasure for me to convene this meeting this morning, which is designed to publicly announce and present the Commission's new Compliance Manual Section on Race and Color Discrimination.
As Ms. Wilson just reported, the Commission has voted to approve this section, which is a section that updates our guidance on how Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race and color. And today we're releasing that update publicly.
The Commission's vote was unanimous. I want to thank my fellow Commissioners and their staff for the many, many, many hours that were invested in crafting this critically important document, which will be posted on our Web site today.
In particular, I want to recognize the leadership and contributions of Vice Chair Earp and Commissioner Ishimaru in making this day possible. Early last year they approached me to discuss this project and suggested that it would really add a lot of value to our already strong enforcement strategy.
I was very pleased to have them take the lead in this endeavor. And I just want to say how much we appreciate the sort of other duties aside on top of all of the work that Commissioners have to do, they have really taken on this project and have worked on it tirelessly to make this guidance the outstanding document that we are publishing today.
The compliance manual is very comprehensive. It is contemporary, and it is user‑friendly. It will be a very valuable tool for everyone who is committed to the elimination and complete eradication of employment discrimination, be it employers, be it employees, be it our partners, who share, our stakeholders, who share, the same mission, and particularly our own EEOC staff members.
So, again, I want to express a very special thanks to Vice Chair Earp, to Commissioner Ishimaru for their leadership, commitment, and dedication of their time and talents to this very important undertaking.
Today's meeting will begin with a presentation of the Compliance Manual Section by staff from our Office of Legal Counsel. First, we will hear from Dianna Johnston, who is the Assistant Legal Counsel; and then from Corbett Anderson, who is now a Trial Attorney in the Washington Field Office but was a principal drafter of the section when he was in the Office of Legal Counsel.
Welcome to both of you, and please begin, Ms. Johnston.
MS. JOHNSTON: Good morning, Madam Chair, Madam Vice Chair, Commissioners. I am really happy to be here this morning to be part of this significant undertaking, which includes the issuance of the compliance manual section that Chair Dominguez mentioned and also includes a training program that accompanies this manual section. And the training program marries this manual section to the systemic enforcement effort that you approved two weeks ago. The manual section, as you mentioned, originated in the Office of Legal Counsel, and will be the primary focus of our remarks today.
Some of our constituents may wonder why we're doing this now when the Commission was established over 41 years ago. And, we know that the Commission was founded as a result of the struggle in the 1950s and '60s that confronted the immorality and injustice of racial inequality.
The Commission's role was to develop enforcement strategies to eradicate employment discrimination and promote employment opportunity. And the Commission has played that role and played it well. It has promoted voluntary compliance, litigated when persuasion didn't work, and helped to shape an entire body of law that has changed the face of employment discrimination in this country today.
Nevertheless, a lot has changed in the last 40 years. First, we’ve recognized race is not the only barrier to equal employment opportunity. Commission resources also go to combating discrimination based on race, religion, national origin, age, and disability.
Second, and on a more positive side, employment opportunities for racial minorities have, in fact, dramatically expanded in the past 41 years. And much of the racial discrimination of the sort we confronted in the 1950s and '60s has diminished, which is not to say eliminated. But the Commission is doing this now because it hasn't been eliminated.
Race discrimination charges continue to constitute the largest percentage of our charge receipts. And the Commission has not written a lot specifically about race. Now that's no doubt because race is the basis for all employment discrimination law. The fundamental concepts of disparate treatment and disparate impact were developed in the context of race discrimination. And the Commission has tended to write about variations on those core legal principles.
Nevertheless, this Commission has concluded that an agency borne of the need to remedy race discrimination should more expressly address race discrimination in its written guidance.
In addition, the face of race discrimination has changed significantly since the Commission was established. Few employers today would openly refuse to, for example, promote an employee because of his race. Yet, we know that racial minorities continue to be significantly under‑represented in higher management positions in most corporations.
The Compliance Manual cites studies, for example, applications, sample applications, sent to employers, some with names that are obviously "black" and some that are “white.” And the white applicants, even though the qualifications were exactly the same, were called in for interviews far more often than the black applicants.
So the Legal Counsel began working to address this policy gap by drafting a Compliance Manual Section on Race and Color Discrimination that began, actually, several years ago, in 2001.
I would like to note that more than is usually the case, this has been a truly collaborative effort, not only agency staff but the Chair, the Commissioners and their staffs, have been intimately involved in developing this project.
There's not time today to mention everybody who has played a role, but I would like to reiterate Chair Dominguez's appreciation for the leadership role taken by Vice Chair Earp and Commissioner Ishimaru. They and their staffs have contributed significant insights and guidance for us.
Corbett and I also want to extend special thanks to Paula Bruner, whose efforts in pulling this together at the last minute cannot be overstated. I'm not sure we would be here today without the efforts of Paula.
The central person throughout all of this process has been the exceptional young lawyer to my right, Corbett Anderson. I supervised Corbett in this project nominally. Seldom was so little supervision needed.
This guidance is what it is today because he never stopped thinking about ways to improve it. He was always ready to incorporate the improvements proposed by other people. He never lost patience or focus through a sometimes difficult process. The Commission is fortunate, I think, to have the incisive legal analysis, the consistent good judgment and the commitment to the Commission's mission that Corbett has brought to this project and, indeed, to all of his work.
On that note , I would like to now turn the discussion over to him to describe the document's development and its content.
MR. ANDERSON: Thank you, Dianna, for those words. I appreciate it, and I appreciate working for you.
Good morning, Madam Chair, Madam Vice Chair, Commissioners. I'm honored, honored to be here speaking to you today, and even more honored to have been the staffer on this project.
Although our laws, as Dianna mentioned, cover many bases of discrimination and all the bases deserve our full attention, in working on this project, we never forgot that race and color discrimination is unique. It's the subject of slavery, the Civil War, three constitutional amendments, several landmark Supreme Court decisions, and the movement that was made up of countless regular people, who put everything on the line in pursuit of freedom. And it's that movement that created Title VII of the Civil Rights Act of 1964 and created this agency 40 years ago.
Forty years later, we know that race still impacts and influences the life experiences and the life opportunities of many people. What Title VII essentially says is that whatever influence a person's race has outside the workplace, in society generally, race and color discrimination is illegal in the workplace and the race should not influence their employment opportunities.
Our investigators in the field, our litigators in the field are on the front lines working every day to make this true. The challenge and the hope of the Compliance Manual Section is to help them toward that end. Under the leadership of Chair Dominguez and, as Dianna mentioned, the thoughtful guidance of each of the Commissioners and their personal staffs and many people in the agency, we were challenged to draft a compliance manual section that's comprehensive, yet reasonably concise; legally accurate, yet useful to lawyers and non‑lawyers alike; a resource for EEOC staff, yet valuable to employees, employers, and other members of the public; forward leaning and forceful, yet measured in tone; built on the successes of the past, yet reflective of current day issues in the modern workplace; and last, but certainly not least, something that would attract and hold bipartisan consensus. And we all know that that was a piece of cake.
The project, as Dianna mentioned, started over five years ago. We solicited from EEOC field offices examples of interesting and compelling race and color discrimination charges that were in their inventories. All of the submissions were helpful and several of them inspired examples in the section.
We also spoke informally with members of the civil rights bar, with civil rights advocacy groups, and with employer representatives. We did background research via the popular press, academic sources, as well as case law. And, of course, we refer to the Commission's own previous work in this area.
Turning to the Section itself, the first half of it focuses generally on coverage issues and the legal standards for determining when an employment decision is discriminatory.
With respect to coverage, the Manual Section explains that the law covers discrimination based on racial ancestry, physical, cultural, or other personal characteristics associated with race, such as names, hair, dress, association with persons of a certain race; for example, by marriage or by having a biracial child, as well as discrimination based on race plus some other characteristic, or the intersection of race and another protected trait, such as race and sex.
With respect to the legal standards, the Manual Section emphasizes that Title VII prohibits all types of racially motivated decisions, whether driven by animus, by stereotyping, or unconscious bias, or by misguided business logic, such as race‑matching sales territories or yielding to customers' racial preferences.
Also, due to the subtle nature of race and color discrimination today, the Manual Section points out that it's important to look at all of the circumstantial evidence in examining a case. In addition, in this first half of the Manual Section, we introduce the disparate impact principle that practices that might be fair in form could be discriminatory in operation, nonetheless.
The second half of the Manual Section turns more directly to how the law applies to specific employer practices and also provides what we hope are useful examples. The various employer practices are organized under headings that reflect what we think are two broad goals of Title VII, equal access to jobs and equal opportunity for job success.
The discussion of equal access to jobs emphasizes the importance of applying hiring and promotion standards consistently and the danger of using recruitment practices and selection standards that might have an unlawful disparate impact, such as word‑of‑mouth recruitment, employment tests, and arrest and conviction records.
The Section reminds readers that any selection device that has a significant disparate impact on a racial group must be job‑related and consistent with business necessity, and should be the least discriminatory alternative available.
Of course, just getting a job is not enough. So the Manual Section explains that all persons should have an equal chance to succeed in their jobs and their careers without regard to their race or color. This means not only that race harassment can't be tolerated, it also means it's important to look at issues such as who gets the good work assignments that allow the person to advance. Is performance measured equally or is it tainted by bias?
Who gets the kind of constructive feedback and on‑the‑job training that says to the employee "We value you. We want to see you do better, and we are going to help you"?
The Manual Section concludes by listing examples of employer best practices. Starting in the late 1990s, the Commission has increasingly stressed its unique role in proactive prevention, the idea being to provide employers with technical assistance and training to help them to avoid discrimination in the first place. The Compliance Manual's Section on Race and Color continues EEOC's emphasis on proactive prevention.
In conclusion, I again want to thank you for the opportunity to be a presenter here today and the tremendous honor to work on this project. More importantly, though, I want to thank you as a citizen. The Commission speaks through its policy guidance and its regulations. And today the Commission has spoken loud and clear that eliminating race and color discrimination in employment is the top priority of the agency or at least a top priority and a top priority of the nation. Thank you.
Next I will turn to Dianna, who will provide more detail on our training program.
MS. JOHNSTON: As I noted at the outset, the Commission is undertaking a Commission‑wide training program to assure that Commission staff fully appreciates and implements the guidance set forth in this Manual Section.
The training reiterates the fact that, first of all, race discrimination is more than about black and white. It comes in many forms. The training also emphasizes developing systemic cases and helping to recognize when such development is appropriate.
Finally, there is a lot of focus on ferreting out subtle discrimination. It's not to say that egregious discrimination isn't still a problem. We all see in newspapers today reports of workplaces that involve nooses or use of the "n" word. So, sadly, that still exists, but the Commission has and continues to effectively address that kind of overt discrimination. We have litigated and settled those kinds of cases, but the training is designed to address the fact that for the most part, again, the face of discrimination has changed over the past 41 years, and it has changed in that much of it has gone underground.
It's gone underground in the sense that those employers who do discriminate, don't do so openly. Few employers today would tell a Commission investigator that they didn't promote a charging party because, for example, other workers didn't want to be supervised by an African American.
It's also gone underground in the sense that sometimes decision‑makers do not themselves recognize that they harbor racial biases. The Manual Section and the training emphasize the fact that unconscious bias can limit employment opportunities every bit as much as conscious bias. If you're unemployed, it doesn't matter how intentional the official was acting when they decided not to hire you.
So the training is designed to help investigators figure out when it's appropriate to investigate more fully and how to do so when the circumstances warrant. It encourages them to look beyond the employer's explanation and beyond the charging party's initial statements and helps them to determine when the additional investigation is appropriate. It also encourages them to determine when and how to look for patterns that might indicate systemic discrimination.
In short, in issuing this document, implementing a training program, and integrating that with the goal of combating systemic discrimination, the Commission embarks on a significant new enforcement effort. And I could not be more pleased to be part of it.
CHAIR DOMINGUEZ: Thank you very much, Dianna and Corbett for your excellent presentations and, more importantly, for your excellent contributions to this effort.
Now I'm going to turn it over to my fellow Commissioners for their statements, comments, and questions to both of you. Madam Vice Chair?
VICE CHAIR EARP: Thank you.
Good morning. I have to add my thanks. Just starting with the players and to Corbett Anderson, in particular, getting the consensus that we have today I know was a challenge, but I have to say you were a classy guy. And you rose to every little time we sent that document back to raise a question. I thank you so much for that.
To the Office of Legal Counsel for its leadership in general on matters of race and color, to Commissioner Ishimaru and his staff, we were determined to get a bipartisan document. Frankly, I'm shocked to hear that the draft floated around for five years. I thought it was only just the three years that we had been fighting about it. So we're delighted that we were able to accomplish it.
And I would be completely remiss if I didn't acknowledge Paula Bruner with the Office of General Counsel, who worked for eight months in my office principally on this particular project. So thanks again to everyone, I am so happy that we finally got to this point.
As has already been said, although many people question whether or not discrimination still exists today, we know that it does, perhaps more subtle but just as egregious. The Commission has been committed to issues of race and color for all of its 42 years, and, again, the Chapter that we released today just reconfirms that commitment.
In some ways, the ugliness of discrimination is even more egregious today because we have a history, we have a body of case law that shows how long, how hard, we have been working to eradicate it.
EEOC continues, as Ms. Johnston has mentioned, to bring cases on behalf of workers who are called the "n" word and other racially derogatory names. We have witnessed in our litigation methodical campaigns of harassment, the nooses being just the most continuing form of intimidation.
Race and color discrimination can also be more subtle. These days the Commission is very much concerned about credit report checks and background checks and how they may be used to exclude particular groups. We're concerned about the use of conviction records to make employment decisions and whether or not such records disproportionately impact black and brown workers. A person's name or zip code might determine their chances for an interview.
Given the various proxies that exist today and the level of unconscious bias that all human beings have, it's very necessary that EEOC continue to develop tools to assist our staff in this changing world. That's what this Chapter does for our workforce and for the stakeholders we serve.
As Ms. Johnston mentioned earlier, the Race and Color Chapter will be complemented with training for investigators. I hope also that we will be able to include our trial attorneys, if not in this training, in a more legalistic form of this training. Together I hope the Chapter and the training modules are just the first in a series of steps that EEOC will take as we position ourselves for discrimination in the Twenty‑First Century.
Again, my thanks to everyone who got us here today.
CHAIR DOMINGUEZ: Thank you, Madam Vice Chair.
COMMISSIONER SILVERMAN: Good morning. First of all, Dianna and Corbett, I want to thank you for your presentations and for all of your hard work on the new Chapter of our Compliance Manual. And I also want to thank the Vice Chair and Commissioner Ishimaru and their offices for their input and their work.
I know that all of you along with many other agency staff have put a tremendous amount of effort into this project. And I want you to know that I'm very grateful, your work on this project is vital to our mission.
As we all know, race cases are and have always been the single highest category of charges that we receive. And Title VII was enacted largely because of discrimination based on race, and, unfortunately, it remains a problem today.
Forty years after the Commission first opened its doors, we still see too many egregious cases, as we have already discussed, cases involving nooses and racial slurs. But we also see many cases involving more subtle types of discrimination, such as situations where people of color are excluded from developmental or networking opportunities, which impinges on their ability to advance in the workplace.
Some cases involving race and color discrimination can be particularly challenging because the discrimination is not always easy to identify or to investigate. And so the Commission is in need of this Compliance Manual Section on Race and Color to assist us in recognizing and dealing with these issues.
I also want to take this opportunity to thank all of our field and Headquarters staff who devoted so much time to developing our new race and color training program. I have no doubt that the new Chapter and the corresponding training will enhance the Commission's capabilities in identifying and eradicating race and color discrimination.
In addition, the new Chapter will help inform our stakeholders and enhance our efforts to proactively prevent this discrimination from occurring in the first place.
Finally, I think that bringing more focus to race discrimination dovetails perfectly with our new emphasis on systemic discrimination. Just two weeks ago the Commission unanimously approved the recommendations of the Systemic Task Force. I believe the Commission's enhanced systemic program will enable the Commission to better carry out its mission of eliminating workplace discrimination, including discrimination based on race or color.
By making systemic work a pervasive and integrated enforcement and litigation practice throughout the agency and using the tools and resources we have more effectively, the Commission can have a greater impact on the types of discrimination that seem hardest to reach. An effective systemic program will allow the Commission to take a more proactive role in eradicating all discrimination, including discrimination based on race and color.
So, again, I am so pleased to be part of this important effort to address race discrimination in the workplace, and I look forward to hearing from the other panelists.
CHAIR DOMINGUEZ: Thank you, Commissioner Silverman.
COMMISSIONER ISHIMARU: Thank you, Madam Chair. First of all, I would like to thank you for holding the meeting. I know how busy we are and how many priorities are out there, and to carve out the time to make this happen is something I truly appreciate and wanted to thank you, thank my friend, the Vice Chair.
The Vice Chair was going off on a trip in early January, and she and I had a discussion about whether we could get this wrapped up and finished, and I told her I thought we could. And I'm delighted we're here today and want to thank her and her staff and thank my staff as well for the countless hours that have been put in to get to this point where we have been able to issue this.
I want to thank my friends in the Office of Legal Counsel, Peggy, Dianna, and especially Corbett Anderson, really an excellent job. And it can't be overstated how much time and effort went into this to get this finished product out.
I am also delighted that we have a panel following this of outside speakers, people who will bring different perspectives to this, giving us a full range of opinions or at least the start of a full range, and I hope this is really the start of a discussion, whether we do it in meetings or other forums, that this body will grapple with the sensitive issue, the difficult issue of race, really, the beginning of a conversation that I hope we will continue and I hope, as Leslie said, will show up in our work over the coming years as we grapple with these difficult issues.
Let me also suggest that at a future meeting we talk about Native American issues as well. There are race issues there, there are sovereignty issues, national origin issues; it's a very unique situation that I think at some point in the future I hope we have a chance to address as well.
For members of minority groups in this nation, people continue to face inequalities today, 42 years after the Civil Rights Act of 1964. I'll give a few examples. Black unemployment is twice as high for blacks as it is for whites. The median net worth of the average African American and Latino families is about ten times less than the average white family.
Despite the myth of Asian Americans as the model minority, 15 Asian American and Pacific Islander ethnic groups have a higher than average poverty rate, and two of these groups have the highest poverty rates of any racial or ethnic group. Some of these inequities can be attributed, in part, to race and color discrimination in the workplace.
We’ve made tremendous progress over the last 50 years on race relations in this country. There has been real and lasting change. Yet, I believe that this continues to be a problem, a fundamental problem that continues to vex our nation.
I know there are some who believe that the problem basically has been fixed and there are only a few bad apples left and we have to hunt out those bad apples. Others wonder why the problem hasn't been fixed yet.
I think by focusing, making this one of our areas of focus, we can help deal with this problem. It’s going to take, I believe, making this a priority, keeping a focus on it, sustaining the hard work necessary to follow through, and I was trying to think of a simple analogy, and I took my messy office as one. For those who have been in my messy office, you know that there are times when I come in and I try to clean it up, and I get boxes and I sort of put myself in boxes, and I put the boxes in a corner. And, at least on a superficial level, that takes away the piles. It drives my wife crazy at home when I do the same sort of cleaning method at home, but, again, it does not delve to the deeper issue out there of trying to keep my office neat. And in order to do that, you would need to take sustained effort, focused effort, make it a top priority. And that simple analogy is not to trivialize the difficulties of dealing with race, but it shows you that with focus and hard work, determination, you can try to make it happen.
You know, despite the challenges that are in front of us, I remain hopeful. And it came back to me as we were talking about this in my office, thinking back to that infamous picture of the Little Rock 9 going to Central High School back in 1957, 3 years after Brown v. Board. And remember the woman who was jeering at the African American woman who was going into the school, the face filled with hate? That’s a vision that all of us remember from seeing it in magazines and for those of us not alive at the time, this was part of the history of the civil rights movement.
And you wonder how much progress has been made given those pictures, given the level of hatred that was there back in the 1950s and that continued on for many years, and whatever happened to those people in the picture? For Hazel Massery, who was the woman who was doing the jeering and saying racial epithets, was part of that angry mob and for Elizabeth Eckford, who was the woman who was walking into the school to exercise her constitutional right to a desegregated education. Back during the 40th anniversary of the opening of - the desegregation of Central High School, Hazel Massery made a public apology to Elizabeth Eckford, and they, in fact, over time became friends and how much things had changed and how from a very difficult time 40 years ago, 40‑plus years ago, they have come to some sort of resolution. And I think that's a sign of progress.
Eliminating race and color discrimination in employment is a lofty goal, but much can change and has changed in a generation or two, which I think can be attributed to a combination of our country's enforcement efforts, enforcement by this agency and others, focus on addressing obvious and blatant race discrimination, and a change in the fundamental mores of our nation, where racial discrimination went from being embraced and acceptable to being rejected and dismissed.
But I think it is necessary that we go beyond obvious problems. Blatant harassment and egregious discrimination obviously are bad and should be dealt with, but I think we need to go on to the next steps as well. And in order to do this, making this a top priority of this agency will help in that effort.
I think given our vote two weeks ago with the Systemic Task Force report, we're really at a convergence. There really is the perfect storm. And I think that we are well‑situated to move it forward.
I know soon after we voted two weeks ago, I ran into an observer of the agency when I was out of town, and he was very skeptical. He said, "What’s this all about?"
And I said, "I think it’s an excellent plan to try to deal with some of these issues." But I think the real test, as I said at the last meeting, is watch what we do. But I think we're well‑suited to do well. And I think by dealing with the race and color chapter today, it's another piece of this puzzle, trying to get to the fundamental problems that confront us.
I think by looking to see whether we bring systemic cases, large cases, focusing on certain industries, where appropriate, or certain employers, where appropriate, it sends a message that race and color discrimination will not be tolerated by people in this country and the government in this country.
We also need to educate people about their rights so they can come to us and complain. I know former Vice Chair Igasaki raised this when he was here. How do you get people to come to this agency to vindicate their rights? That's very, very important.
And as I've learned in my time here, the employer community has done a good job over the years in creating an infrastructure to try to deal with employment discrimination based on race. The best practices that have been developed should be shared more broadly, and there has been, if you look at the workplace, tremendous strides made, but obviously there's more work to be done.
So, again, I look forward to hearing our panelists. I thank Dianna and Corbett for their excellent presentation. And thank you again, Madam Chair.
CHAIR DOMINGUEZ: Thank you, Commissioner.
COMMISSIONER GRIFFIN: I’d also like to congratulate everyone who worked on this: the Chair, Vice Chair Earp, Commissioner Ishimaru, the staff in the Office of Legal Counsel, specifically Corbett and Dianna, and I know Paula Bruner, who really worked on this and got us here today.
I believe this Chapter also with the training that is going to be offered to our field enforcement staff will only serve to strengthen our enforcement activities in this area.
And I also believe this Chapter, along with the guidance that the Office of Legal Counsel has developed entitled "Questions and Answers About Race and Color Discrimination in Employment," will also offer employers clear guidance and information that they need to comply on the provisions of Title VII that prohibit race and color discrimination. And I am really glad that that is going to be on our Web site as well as the Chapter.
I do want to echo what Commissioner Silverman said about the systemic, the dovetailing of this with the systemic piece because I think the elimination of discrimination in employment, racial discrimination in employment, is not only a lofty goal, it's an impossible goal. It can't be done, but what we can do is we can, with our work on systemic litigation, we can actually make that sort of the over‑arching goal and then start really developing strategies and priorities within that to attack, as Stuart said, certain industries, certain practices, things like that. So I think that is the next step where we go from here, start really developing some concrete strategies and as we fashion ourselves as a national law firm, we really start focusing on things as a nation.
Anyway, race discrimination, of course, continues to be a big problem. And it continues to be the most frequent charge that we have here at the EEOC. I think it was 36 percent of all our charges filed last year had a component of racial discrimination.
In an essay written by Derrick Hamilton for the National Urban League Report, "The State of Black America 2006," he said, "Today there is a general pattern of exclusion in the most desired management, professional, and related sectors for blacks that have requisite educational qualifications. In contrast, service occupations offering some of the lowest wages contain a disproportionately high concentration of blacks."
Professor Hamilton's prescription for change is that labor market interventions, such as anti‑discrimination laws and affirmative action policies, are still needed and must be strengthened to redress the systemic crowding of blacks into low‑wage jobs that exclude them from the higher‑wage jobs. I think the Race and Color Chapter will help us administer that prescription.
This Chapter also recognizes that in our enforcement of Title VII, there is this whole issue of dual discrimination faced by different racial and ethnic groups. And I'm particularly interested in the dual discrimination faced by people of color who are also individuals with disabilities. Of all the ADA charges filed last fiscal year, 60 percent included allegations, alleged violations of one or more statutes enforced by the EEOC.
So, really, when we looked at that statistic, I was surprised, actually. I thought that it wouldn't be that high. And I was really happy to see that we were recognizing that this does exist.
According to the latest Census Bureau data from the American Community Surveyors calculated by the Employment and Disability Institute at Cornell, for working age people with disabilities, approximately 72 percent of African Americans with disabilities, 62 percent of Hispanics with disabilities, and 60 percent of Asian Americans with disabilities are not working. That number is higher for people with more severe disabilities.
Approximately 66 percent of women with disabilities are not working, despite the fact that every study that has been done of people with disabilities reports that people with disabilities who are unemployed want to go to work, so I will be very interested in anything the panelists have to say about this issue. Clearly there is still lots of work to do and the EEOC will continue to have a critical role to play in fighting race and color discrimination in the workplace.
CHAIR DOMINGUEZ: Thank you, Commissioner Griffin.
Before we conclude this segment of our meeting today, I just want to say that I believe the value of this Chapter will transcend our borders. Next week Commissioner Silverman and I are going to London.
And, as you know, with globalization, our global economy, global resources, we have seen what has happened in France. We have seen what happened in all parts of the world, where there is so much social and economic unrest. And we're very proud and privileged to have an opportunity to talk to our colleagues who are addressing the same issues that we're addressing here in Europe and to share with them some of the information, and the benefits of our experiences, as reflected in this Chapter. So this Chapter will travel far and wide in our efforts to eradicate discrimination and to make the American dream a dream for all who are part of this universe.
So, again, on behalf of all the Commissioners, I want to thank Corbett, Dianna. I want to thank Peggy and a special mention to Paula Bruner and all who worked so hard in this effort. Thank you very much.
Now we're going to hear from our invited panel members. They're going to appear in two groups for discussion and dialogue with the members of the Commission.
going discussion of contemporary issues of race and color, which we’ve begun today with the publication of the Compliance Manual Section, we're going to be hearing from a number of speakers, from our long‑term stakeholder groups representing organizations that have worked with the Commission for many, many years. We're also going to be hearing the latest academic research and some thought‑provoking insights from Georgetown Professor Harry Holzer.
And I particularly want to thank Commissioner Ishimaru and his staff for their instrumental work in identifying our panelists and facilitating their appearance here before the Commission this morning.
I am also very, very delighted to welcome back the Honorable Paul Igasaki. Welcome back home. It's good to have you here.
MR. IGASAKI: Thank you, Madam Chair.
CHAIR DOMINGUEZ: Welcome. We have our waters all set and are ready to go. All right.
Well, at this time I would like to begin with Jocelyn Frye, welcome her back to the Commission. By the way, all of their bios in greater detail are right outside at the table, right outside of this room. So please make sure that you get a copy of that. In the interest of time, I'm just going to say that Ms. Frye is the General Counsel for the National Partnership for Women and Families. She's also the Co‑chair of the Leadership Conference on Civil Rights Employment Task Force and a long‑time supporter and advocate on behalf of the mission of this agency. So welcome, Ms. Frye.
MS. FRYE: Thank you. Good morning.
CHAIR DOMINGUEZ: Good morning.
MS. FRYE: Good morning, Madam Chair and Commissioners. It is a privilege to be here, both on behalf of the National Partnership for Women and Families and also the Employment Task Force of the Leadership Conference on Civil Rights.
As the Chair has already said, I am Jocelyn Frye, General Counsel at the National Partnership. In the interest of time, I won't read my entire statement and will ask that it's submitted for the record, and what I am going to try to do in the brief amount of time that I have is focus on some discrete points that I highlighted in the testimony and hopefully put forward some recommendations for you to consider as you look forward to not only the release of the Race and Color Discrimination Chapter but also think about the type of work that the Commission needs to do around enforcement of race and color discrimination laws and regulations.
As others have already said, suffice it to say that the quest for civil rights that fueled a generation of activity in the civil rights movement resulted in dramatic changes. And nowhere is that more evident than the workplace, where there has been enormous progress and numerous gains, but it is also clear that there is work still to do and discrimination remains a persistent reality. And you need look no further than the EEOC's discrimination charge data to see the tens of thousands of claims that are received each year that reflect an unfortunate fact that still too many workers face discrimination and discriminatory practices and attitudes on the job.
As others have already noted, the majority of those claims currently are and have always been race discrimination charges. And typically they have constituted anywhere from 30 to 35 percent of the charges received by the Commission each year.
What these numbers I think make clear is that more than 40 years after the Civil Rights Act of 1964 and the creation of the EEOC, race discrimination in employment remains a central enforcement challenge facing the agency. And the numbers also illustrate why it is important to incorporate concrete measures in how well the agency investigates and resolves allegations of race or color discrimination and to any assessment of the EEOC's effectiveness.
In looking at this issue more closely, it is clear that race and color discrimination continue to pose significant barriers for far too many workers who are seeking to find and retain employment. Racial and ethnic minorities remain under‑represented in the highest levels of management and the highest paying jobs, frequently lacking access to the same type of advancement opportunities as their white counterparts.
Plaintiffs seeking to pursue race and/or color discrimination claims increasingly face courts that are unsympathetic to employment discrimination plaintiffs generally and race discrimination charges and are less likely to rule in favor of plaintiffs filing such claims.
Many plaintiffs are unaware or confused about the distinctions between race discrimination and color discrimination and the relevant standards of proof needed to successfully pursue these types of claims.
Many women of color in the workforce face a double burden confronting discriminatory attitudes and practices because of their race and their gender. Yet, courts often are unwilling to recognize these combined forms of discrimination claims, preferring, instead, to analyze those claims based solely on one factor.
Many plaintiffs have limited access to resources that limit their ability to challenge more complex practices in the workplace, such as systemic employment discrimination, that affect large groups of employees. Moreover, plaintiffs often lack access to just the information that's necessary to tackle glass ceiling issues and promotional claims and advancement opportunities.
In short, race and color remain potent factors that can affect the type of job a worker gets, how that worker is treated on the job, how that worker is evaluated by supervisors and colleagues, and whether that worker will have a meaningful opportunity to advance up the career ladder.
Thus crafting an effective strategy to combat and prevent race and color discrimination must include efforts to gain a comprehensive understanding of different workplace practices and their impact on different workers, how discrimination problems are handled in the workplace, and what happens when charges are filed with the EEOC.
As you look at ways to tackle race and color discrimination, I think it's important to sort of step back and get the broader context looking at who is filing race discrimination charges, what happens when those charges get to the EEOC, the broader environment that many plaintiffs encounter when they're bringing their claims if they're not going through the EEOC, and then I want to suggest at least a couple of action steps that you might consider.
First, in looking at who is filing race discrimination charges, as one of the speakers already noted, if you look at the EEOC's data, it reveals that the bulk of race discrimination charges continue to be filed by African American men and women, but if you look over the relevant time period - the National Partnership, I should say as a preliminary matter, did some research on EEOC's discrimination charge data several years ago, and we looked at a period between fiscal year '92 and 2003. And when you looked at that time period, not surprisingly, the bulk of race discrimination charges were filed by African Americans. But what is interesting is that over that time period, those numbers had actually gone down slightly.
Instead, what you found is a huge increase in the number of race discrimination claims being filed by Hispanic workers, both women and men; Asian American, Pacific Islander men and women; and, to a lesser extent, I think, American Indian women as well; and white women and men. And so what it revealed is the increasing diversity of race discrimination claims. And that’s important to consider just in terms of the EEOC's enforcement efforts.
The other piece that is important is to look at what happens with those claims when they get to the EEOC. And, not unlike other charges, the EEOC only litigates a very, very small percentage of the charges that it gets. And interestingly about race discrimination is that, although race discrimination charges reflect the largest percentage of charges received by the Commission, they reflect a much smaller percentage of its litigation.
If you look at FY 2005, I believe race discrimination charges were 35.5 percent of the charges it received but only 21 percent of the cases pursued by the EEOC in court.
There's also some data that shows how difficult it is for employment discrimination plaintiffs generally in the courts. And it reinforces the importance of the Commission's work in really doing an aggressive effort to enforce race and color discrimination laws.
Given the limited time, I do want to emphasize a couple of places where we think that the agency could focus. One is, first and foremost, doing an internal assessment of the work that the Commission has already done, what they're doing well, what you're not doing as well, places where you can improve, looking at the enormous amount of data that you have that shows the types of claims you get, how those are resolved, and the different litigation trends in different occupations.
Second, I would encourage you to think about targeted litigation, not only systemic litigation and things like looking at complex practices but setting some specific goals in terms of perhaps looking at different industries or setting specific targets in terms of numbers of cases.
Third, I would suggest outreach and public education. Even though many people think about race discrimination and think they understand it, as others have mentioned, it's still pervasive. And it's important for people to understand what is happening out there and understand their rights. And it's also crucial for the Commission to connect with people on the ground.
Fourth, improve data collection. You have an enormous amount of data. It's worth dissecting it and reviewing it to determine whether there are different occupations or industries where race or color discrimination is more pervasive; and, finally, ongoing research to reflect and report on your findings. Oftentimes you have the research. You look at the research. And we're curious to hear what you find out. And so I'm encouraging you to do all of those things as you consider what others sorts of initiatives you can pursue in the future.
Thank you for the opportunity. I'm happy to entertain questions.
CHAIR DOMINGUEZ: Thank you, Ms. Frye.
What we'll do is we'll pose the questions after hearing from all of the panel members. And at this time, I will invite Professor Harry Holzer, who is the Associate Dean of Public Policy at Georgetown University, who has done a lot of research in some very interesting areas, to please present.
Welcome. And thank you for being here.
MR. HOLZER: Thank you, Madam Chair, Madam Vice Chair, and other Commissioners. I appreciate the opportunity to speak to you on these issues this morning.
I would like to review the scholarly research evidence, recent research evidence, on discrimination in employment with a particular focus on discrimination against African Americans. And I would like to make four general points, which I will then elaborate on.
The first point is one that many people have already said this morning. Racial discrimination does persist in the labor market, although more powerfully in some kinds of jobs and against some groups than others. The strongest evidence on the persistence of racial discrimination is from a whole range of what we call audit or tester studies in the past 10 or 15 years, where matched pairs of job applicants, one white and one minority, are sent out with identical credentials on paper to apply for jobs. In virtually all of these studies, we find statistically significant differences in the rates at which whites versus minority candidates receive callbacks from employers or job offers. There is a fairly large body of literature there on that.
These findings have been reinforced by some other modes of research. I and some others have been involved in large‑scale surveys of employers. And, indeed, in the last ten years, I have surveyed many thousands of employers in a variety of metropolitan areas. And one body of questions asks them about the racial composition of their job applicants as well as the racial composition of the people whom they actually hire. And what we consistently find is that black job applicants get fewer job offers than white or Hispanic applicants, that black males get fewer job offers than black females. It often depends on the size of the establishment, racial composition of customers, the racial composition of management and the owners of those establishments.
There is a large body of ethnographic evidence based on small sample interviews with employers that confirm these findings. Employers clearly have negative stereotypes about blacks relative to other groups of employees. And it's quite clear in these interviews that they remain more fearful of black men even relative to black women.
Finally, there's a reason to believe that employer discrimination of blacks occurs more frequently at the hiring stage than in the job assignment or promotion stage, although there's also, as people have indicated, discrimination there as well. Perhaps part of the reason for this is that so many EEO lawsuits focus much more heavily on allegations of wrongful promotion or discharge, rather than allegations of discrimination at the hiring stage. And some employers believe they can avoid the hassles of lawsuits simply by turning people away at the hiring stage.
My second point is, again, as many people have already indicated, even though discrimination matters less than it used to in previous generations, it still seems to have both direct and indirect effects on the labor market outcomes that we widely see. Now, there is a body of research evidence, statistical evidence analyzing racial gaps in wages and in employment. Now, the recent literature shows that much of the existing gaps, racial gaps, in wages, I say much, not all but much of it, can be accounted for by racial differences in schooling and in cognitive achievement. And that's true both for whites relative to blacks and whites relative to Hispanics.
There are larger employment gaps between whites and blacks that cannot be as fully accounted for by gaps in schooling and test scores, but there is a range of other factors that contribute to those employment gaps, including spatial mismatch between where jobs are located in metropolitan areas and where workers live, the weakening of informal networks that link workers to jobs in the black community and a variety of other factors.
Now, quite disturbingly, in my research, the tendency of young black men to participate at all in the labor market has continued to decline in the 1980s and even the 1990s and even the last few years as well. And this seems to be related to rising levels of incarceration, child support policies, and a variety of other factors that I'll come back to.
Indeed, we see very, very large numbers of young black men and to a lesser extent young black women disconnecting quite early on in their lives from school as well as from the labor market. And a lot of these black men later become offenders, they become noncustodial fathers, and this further diminishes their activity in the labor market.
Now, some might infer from this that the problem is really in schools and in the behavior and choices made by young blacks, not discrimination. I would like to disagree with that. I think the choices the young people make that affect their later chances in life are reinforced by their perceptions of hostility in the labor market on the part of employers and other groups. I think reasonably those perceptions have some accuracy, that employers avoid black applicants, not just at the hiring stage but even in terms of where they choose to locate and what kind of recruitment methods they use. There's a variety of activities to avoid black applicants. I think black young people perceive those barriers and that hostility and then make a set of choices that tend to reinforce their disadvantage.
The third point I want to make is that I think at this point a lot of discriminatory behavior against blacks in the labor market is closely related to the issue of incarceration. That's a fairly shocking statistic. One‑third of all young black men are involved in the criminal justice system. One‑third of all young black men will spend some time behind bars in their lifetime.
And we know that employers are much more reluctant to hire men with criminal records than any other group in the labor market. Probably it's because in many cases, state law forbids them from hiring men with criminal records into many occupations or it might just be the fear of legal liability, the fear of financial loss, or even of personal injury if they hire an offender and something goes wrong.
Audit studies by Professors Devah Pager and Bruce Western, both of Princeton, in Milwaukee and New York City have confirmed that employers are very averse to hiring men with criminal records, of any racial group, but especially black men with criminal records.
There are also findings that black men, even without criminal records, get fewer job offers than white men with these records. But that may reflect a phenomenon that many of us call statistical discrimination, where employers who don't have accurate information about individuals make presumptions about the aggregate characteristics of groups. And that presumption can be combated perhaps with more accurate information delivered to those employers about individual characteristics.
Finally, my fourth point is I think there's a range of approaches that might be useful in reducing this kind of discrimination in hiring, although, again, we don't know a lot about the cost‑effectiveness of these different approaches and we need to get more information on that.
Let me throw out a few possible suggestions. Number one, I think we can make greater use of tester studies and audit studies, not directly in enforcement but as part of a research agenda, to learn more about where discrimination persists; what sectors; what kinds of establishments; what geographic locations; and, again, I guess what kind of groups.
Secondly, we have a large body of EEO-1 data collected from employers that never got systematically analyzed and this is especially the data collected from non‑contractor employees that we could study further just to get a better sense of what these employers are doing in terms of their hiring and where discrimination is more rampant.
And the third point I want to make is that it might be possible to achieve somewhat greater balance between hiring cases on equal employment opportunity versus the much larger body promotion and discharge cases because I think resolving that enormous imbalance between the two kinds of cases, contributes to this tendency to discriminate at the hiring stage.
Now, having said all of that, I also want to emphasize that there is a different approach that involves labor market intermediaries, third party groups that might bring more job applicants, more African American job applicants, to those employers who are not easily accessible right now and might provide more accurate information on the workplace, the relevant workplace, characteristics of these applicants, might work, really, with both sides, both the employers and the employees, on issues of cultural competence, soft skills improve the communications between the two groups. Bringing these kinds of deference to scale, these are very micro approaches. And bringing them to some kind of meaningful scale will be a difficult issue to face, but I think there are possibilities there that we can explore.
All of this cries out for greater experimentation, rigorous evaluation of what methods are, in fact, cost‑effective. And, as I'm sure the next two speakers will indicate, as Hispanics and Asians grow in the labor market relative to African Americans, we simply need a lot more research and evidence on the kinds of discrimination those groups face as well.
Thank you very much, Dr. Holzer. I appreciate the very insightful perspective and fresh research, appreciate it very much.
We will next hear from the Honorable Paul Igasaki, former Vice Chair of EEOC and currently the Executive Director for the Rights Working Group. Welcome back.
MR. IGASAKI: Thank you, Madam Chair, and thank all of the Commissioners and the staff of EEOC for preparing this meeting and working on this very important issue.
I want to especially acknowledge Vice Chair Earp and Commissioner Ishimaru for working on this very important issue. I had read remarks by both of you on this subject and am very impressed by the sensitivity and knowledge both of you have in this area.
For Asian Americans, it is very important to recognize these things because we're not always thought of or included and appreciate your thoughts and knowledge in that area.
Of course, the vice chairs always do wonderful work at this agency.
MR. IGASAKI: I always knew that there was going to be something good coming out of the office.
These days I don't really do employment work when working at the Rights Working Group, which is a coalition of organizations working on the civil rights problems that have arisen since 9/11. As important as that does ‑‑ and I'll mention how it crosses over with some of the employment issues that you work on ‑‑ it's really more my past experience, both at the Commission and in the Asian American community, that gives me the base to talk about the issues that you want me to address here today.
The main point or the first point I would like to make in terms of Asian and Pacific Americans and how they interact with job discrimination issues and problems is that we don't always know what is going on.
I think Professor Holzer noted that we're not usually included in studies. And the studies that I have seen from when I was a young lawyer, we were always other. And back then Latinos were also other. We're starting to see Latinos included more and more, but in many cases no and Asian Americans often no.
But when you consider we’re four percent of the population now and growing, and the complexity of the community really merits that inclusion. To the extent this agency has access to data and information, I really do commend you to use some of your resources, as you already have to some degree, to find out more about how Asian Americans are affected and how some of the generalizations I am going to be making based on my experience are supported or not by what you are seeing as well.
One of the first things ‑‑ I think Commissioner Ishimaru noted that this is a refrain I've sounded before, that you can't really just look at the intake data and say, "This is how many Asian Americans experience discrimination."
The reality is Asian Americans do not file charges. And to the extent that I spoke with the Asian American community while I was a Commissioner, that was my refrain. You suffer discrimination. Come forward, take the risk. Some listened, most didn't.
The reality is that they don't file charges. And there are reasons why. I think Charles will speak to the Latino experience, which may be similar in some respects. But, number one, Asian Americans are majority immigrant. Even people who may have come over as young people, they're not necessarily as familiar with this system. They're not necessarily as familiar with the laws. And in a reality where many of them would encounter agencies or even private sector institutions, where the language isn't spoken, nor is an attempt made to accommodate that, the issues and complexities of their experience are oftentimes not understood. Certainly the cultural differences that they face are not understood.
So all of that leads to a reluctance to come forward, a reluctance to trust institutions. Frankly, many come from countries where they come here in hope of the fair play that this nation promises and often provides. They come from countries where that isn't something that you trust so automatically. I think it takes some time for people to build up that trust.
But there are a large number of reasons why. I also believe there are some cultural reasons. It's very complex and sometimes sensitive to deal with cultural reasons, but I think some of it is that many Asian American cultures are group‑oriented cultures where problems are resolved at the group level that you expect other people to help you with your own personal problems, just as it's your responsibility with the personal problems of others.
This is a very individual culture. When I spoke to Asian American groups, I used to say that complaining is the American way, and it's time for you to get used to that. But it's just another way of saying what I think the founders said that democracy only works if we operate it, if we're knowledgeable and we assert our rights. No one else is going to do it for us.
And I think I have had some success with Asian Americans by pointing them towards the public spirited side of it. If this employer is discriminating against you and you don't do something about it, maybe you're okay, but what about your daughter when she comes to this agency years later?
I'm reminded when I'm in this building of something that occurred when I was a young person about the age of my daughter when Dr. King came to Chicago to take his campaign northward. And I remember, I thought I understood Dr. King in the fight for civil rights in the South as a young person, but I didn't really understand what was going on in Chicago.
My father explained to me that, "Well, Dr. King is here so that perhaps when you are an adult, there won't be any racism." And I took that to heart. Also, it said something about the idealism of the 1960s.
But this institution that you are in place facing equally challenging problems and more complex problems as were existent back in the '60s. Certainly we have made progress, but we know that when our grandchildren are adults, that there will still will be racism and there will still be all other forms of discrimination that exist. This agency is needed, as always.
For Asian Americans, they suffer all forms of discrimination. Commissioner Griffin mentioned dual discrimination, and I spoke to it before. It's certainly something to bear in mind.
The other thing is with Asian Americans, it's recognized that racial discrimination may be the predominant experience, but it crosses over with national origin discrimination. So someone may hate Vietnamese. They may discriminate against me because of that. That's part of the nature of racism as experienced by Asian Americans.
In addition, we have a particular problem with things such as glass ceiling discrimination, the stereotypes that we face, the assumptions that people have about who we are, how we adjust to our jobs.
There are some so‑called positive stereotypes saying they were hard‑working and intelligent, but that same stereotype says that we're not leaders and we're not flexible, we don't understand human relations and we don't communicate well. All of those are stereotypes. Some of us aren't so hard‑working. Some of us are good leaders, I hope. But those stereotypes need to be addressed. I think that is a very important part of the experience that people have.
I remember that the case involving the American Seafoods that came up when I was here. And a group of Vietnamese in factory ships could not advance beyond entry level because their employer would not allow them to. So it's not just about the corporate board rooms, but that disparity exists all up and down the ladder of employment.
We are seeing more harassment, just as African Americans and others are seeing greater harassment. Some of it is attached to issues of past international conflicts or for south Asians and for people from the Middle East who are not covered by Asian Americans, that is also an ongoing problem as well.
So those are things that are the Asian American experience with discrimination. Just quickly some of the ways to deal with that. I think forward‑thinking employers have had very good ‑‑ I know the Chair is very experienced in this. Corporations that are leading in this area have very adequate aggressive diversity programs. You need to track your numbers. You need to see who is getting promoted and who is not and remove any barriers that are causing those disparities that still exist.
For this agency, though, I think the most important thing that this agency can do is continue aggressive enforcement of the laws. Asian Americans aren't going to flow into your doors in great numbers, but if you find that case that really is strong, sometimes a person will be more than eager to go into mediation. As much as I believe in mediation, if the case is better suited for aggressive enforcement, I urge you to consider and to train your people to know that Asian Americans are going to be reluctant to do what is theirs by right. And so they need to be urged to do that to the extent that is appropriate.
Those cases send incredible waves through our community. The seafood case and one of the Filipino cases that occurred in those days went through all the ethnic newspapers around the country. And you see a bump‑up in communities, not necessarily of complaints but of sensitivity and concern with these sorts of things.
So anything the EEOC does, I know a relatively small proportion of cases actually go to lawsuit, but those that do, as you know, since you can't talk about the other ones, those are the ones that carry the message to people in the United States: you've got to change this, you've got to do something about it. And I urge you to consider using those tools. Your offices, some of them, are very good now at doing outreach. I'm proud to say I helped work on that, and I'm glad to see that you're continuing to prioritize that. Those linkages help, can help educate the community.
And, further, I think using the full enforcement tools, when you talk about glass ceiling, it helps to know what's going on, but very few cases come forward. I think you need to think about things like using disparate impact litigation and things of that nature to send a strong message that this sort of thing isn't accepted.
I know this Commission has filed some very aggressive suits in that area. Asian Americans look forward to seeing that sort of enforcement in the future as a way to guarantee our rights and the rights of all Americans.
CHAIR DOMINGUEZ: Thank you so very much for sharing your perspective as they affect the Asian Pacific Americans. And I'm glad this meeting affirms the fact that the Office of the Vice Chair continues to do good work.
CHAIR DOMINGUEZ: At this point, I would like to invite Charles Kamasaki, who is the Senior Vice President, for another very long‑time supporter and stakeholder, partner of the Commission, the National Council of La Raza. Welcome, Mr. Kamasaki.
MR. KAMASAKI: Thank you, Madam Chair. It is indeed a pleasure to be here today, especially with former Vice Chair and Commissioner Ishimaru. We are three Asian Americans who have been working in the civil rights field for probably 15 years or so or longer in Washington, D.C. And since we are at least occasionally mistaken for each other, and some have, in fact, speculated that there is really only one or two of us, ‑‑
MR. KAMASAKI: ‑‑ it's useful to demonstrate that we are, in fact, three different people.
MR. KAMASAKI: I would start by noting that about a dozen years ago, NCLR issued a report that was highly critical of this Commission. And I would be remiss not to note under the leadership of not just the current Commissioners and Chair but under Vice Chair Igasaki and former Chairs, this Commission has in fact, made substantial strides in improving its service to the Latino community.
As the Commission is aware, the vast majority of charges emanating from the Latino community relate to national origin, but in this context, I think it's important to note that questions of race and color also affect Latinos. These questions are very complicated within the Latino community, which is itself racially very diverse. And although there is a rich and growing body of literature that examines Hispanics' attitudes towards race and color, much of this work focuses exclusively on the community's perceptions, much less so on whether and the extent to which Latinos' racial composition or color may contribute to employment discrimination.
It is, of course, this latter question that should be of interest to the Commission since, after all, the source of employment discrimination is not the community's attitudes but the employers’ attitudes.
In this context, there are two important Hispanic subgroups that may be disproportionately likely to experience workplace discrimination based on race and color: Afro Latinos and indigenous Latinos. And I would like to discuss those two groups briefly.
One emerging question that the Commission should consider is the extent to which Hispanics who are of African descent, so‑called Afro Latinos, are disproportionately likely to experience employment discrimination. You might consider first the size of this population, although this is a matter of some dispute that requires some additional analysis.
One study has estimated that there are about one million individuals that the author refers to as so‑called black Hispanics. Using somewhat different but entirely plausible assumptions, another source has reported that there are about 1.7 million Hispanics in the United States who have some African origins and have speculated that the actual number could be closer to 3.9 million.
The way in which individuals become Afro Latino or who adopt or assume the label is also mixed. Some, possibly as many as half, acquire the label through intermarriage with African Americans once here while others come from Hispanic nationality groups with strong African origins.
Moreover, there are some indications that Afro Latinos experience higher levels of discrimination than their Hispanic counterparts who do not have African origins. One study notes, for example, that Hispanics who define themselves as racially black have lower incomes than their non‑Latino peers. Other studies have found that African heritage is correlated with indicators consistent with high labor market discrimination, at least for some Hispanic subgroups.
While hardly definitive, taken together, these data demonstrate that the group of Hispanics known as Afro Latinos broadly defined is growing and experiences greater socioeconomic disadvantage. At a minimum, the subject of Afro Latinos appears to deserve greater exploration by this Commission.
With respect to indigenous Latinos; that is, Latinos who have identifiably indigenous physical characteristics, many believe this group also experiences high levels of discrimination. Estimating the size of this population, however, using Census data is highly problematic for a whole range of reasons, which I mentioned and would be happy to discuss further.
Nevertheless, there are data sources that suggest the size of this population could be very large, possibly even exceeding that of Afro Latinos. For example, in the 2000 Mexican census, the first language of approximately eight percent of that population is indigenous.
Assuming ‑‑ and recognizing this is a big assumption ‑‑ that the 26 million Mexican Americans in the U.S. would share a similar racial heritage, this would produce an estimate of at least 2 million indigenous Latinos of Mexican origin in the United States alone, not counting other U.S. Hispanic subgroups with indigenous origins.
A series of studies over the years have found that darker skinned Mexican Americans, presumably highly indigenous in appearance, experience substantially greater labor market discrimination than their lighter skinned counterparts.
As with the case of Afro Latinos, it appears that there is sufficient evidence to support a suspicion at least that indigenous Latinos may experience higher rates of discrimination than those who are non‑indigenous.
I would also observe that if it is true that Afro Latinos and indigenous Latinos are significant population groups that experience substantial levels of employment discrimination, special outreach and enforcement strategies may be required. I suspect, for example, that this Commission's capacity to work with indigenous Mixteco or Zapateco immigrants, who may not themselves be proficient in Spanish, is extremely limited.
Similarly, it is not clear that outreach strategies that this Commission has employed with some success to encourage heightened awareness of employment discrimination among Hispanics overall, will necessarily be effective with Afro Latinos.
In this context, NCLR recommends, first, that the Commission conduct or sponsor additional research to address alternative measurements of the intersection of Hispanic ethnicity with questions of race and color, focused, in particular, on how Latinos of various phenotypes are perceived by society at large; and, further, to measure the extent of labor market disadvantage experienced by Afro Latinos and indigenous Latinos. And both former Vice Chair Igasaki and Professor Holzer have mentioned testing or auditing studies, and we would recommend that as a useful tool.
Second, we would recommend that this Commission hold formal meetings and informal dialogues with Afro and indigenous Latinos to solicit their recommendations for additional steps that the Commission might take.
In closing, as recent events have refocused the nation's attention to the presence of a large number of Hispanic immigrants in this country and as Congress considers various proposals to reform our immigration laws, NCLR urges this Commission to stay ahead of the curve in monitoring this situation. If legislation includes new workforce enforcement measures, it is clear that the potential for increased discrimination against Latinos and others perceived to be foreign is significant. Even if legislation is not enacted, many observers believe that the potential for a renewed backlash against immigrants or those perceived to be immigrants, is growing. And, again, we would, therefore, urge this Commission to remain vigilant on this issue.
And, as always, NCLR is prepared to work with you on these and other issues of mutual interest. Thank you.
CHAIR DOMINGUEZ: Thank you very much, Mr. Kamasaki. And thank you again to all of the panel members.
I will now open it up for comments and statements and the questions of my fellow Commissioners, beginning with Madam Vice Chair.
VICE CHAIR EARP: Thank you, Madam Chair.
A couple of things. For Ms. Frye, I want to acknowledge the recommendations included in your statement and to assure you that in light of our attempt to better marry, as Ms. Johnston said, our concern about race and color with stepped‑up enforcement regarding systemic, that we will be taking your recommendations under advisement, sharing those with others who are working on both race and color issues and systemic concerns, I really think that we can make some headway there and that much of it is already underway.
For Professor Holzer, I have a question that I'm not exactly sure how to frame, but you're a professor, so you’ve probably gotten those "What if?" questions from students.
And the question is this, regarding the status of black men, in particular, in labor markets, do you have any evidence or is there research out there going to how we might apportion the explanations for that status? In other words, you mentioned spatial mismatching; you mentioned schooling and cognitive development. We have discrimination and stereotyping, and then we have personal behavior and personal decisions to disconnect.
If we're trying to figure out what percentage does discrimination play in all of these various factors, can you comment or is there research that attempts to apportion it?
MR. HOLZER: There is. There's never any one study that really enables you to sort out all the different sources because it requires often different kinds of data that measure these different pieces.
I think, if I could summarize my broad view of this whole literature, I would say right now that gaps in schooling and in cognitive achievement are probably broadly the largest source of these labor market differences.
I think discrimination, direct employment discrimination, might be a strong second and then a variety of other factors, spatial mismatch, weakening of informal networks, et cetera, job search behaviors might be a third category.
But, again, it's important to remember this point that I made that ‑‑ and when we say that gaps in schooling loom very large, first of all, those often reflect discrimination in the housing market, ongoing segregation in schools, neighborhoods, et cetera, all of which feed into academic achievement. And there's a whole separate body of literature pointing that out.
But I very strongly believe that a lot of the choices that these young people make, often very early in life, ‑‑ it's very sad to see young black boys, adolescents, early teenagers disconnecting from school, deciding that achievement is a form of acting white, in many ways different from what their girl counterparts behave.
I really believe those choices often reflect a perception, a feedback. They perceive hostility in the broader society. They perceive discrimination in the workplace. They perceive a lack of pathways to success in the labor market. And then they respond by disconnecting and pulling away. And that shows up in their educational achievement.
So we can say ‑‑ and it is certainly true ‑‑ that achievement gaps are a very large part of this problem, but in some ways achievement gaps themselves respond to or reflect these perceptions of hostility elsewhere, these inequalities.
VICE CHAIR EARP: Okay. Maybe you and I can talk sometime offline because since black girls are often in that same environment, I struggle as a black woman and also as a lawyer interested in this field to justify how two people coming from the same environment end up taking different paths. And what does it mean for us as a matter of public policy as we are trying to figure out is it discrimination or is it one of those other variables that also weigh heavily? So I'll get your card. And hopefully we'll get a chance to chat.
Now, at the risk of continuing the myth that there really aren't three of you, I want to pose a question to two of you since both have mentioned immigration and immigrants.
Essentially the question is, how do we go about continuing to establish outreach programs that will be meaningful in the climate that currently exists? Frankly, I'm very proud and very pleased with the way our California offices, for example, Seattle as another example, reaches out to the Asian community and has a pretty firm understanding and cultural sensitivity to how broad it is.
I was surprised to find similar outreach programs in Houston, for example. I don't know why, but it kind of surprised me. The issue is, though, those offices have been building trust for a number of years and not in today's current climate.
So my question is, if you could both respond to what recommendations do you have for us to continue to do that kind of outreach, where trust may not exist and may actually be hampered by the current climate?
MR. IGASAKI: Well, I think some of that is inevitable. I think one thing to bear in mind is, even though there is a high level of attention to immigrants and immigrant rights and anti‑immigrant feeling, anti‑immigrant feeling has always been there.
So the fact that a government program can do outreach can be true now as before. I think the media and the overt nature of some of that negative reaction to immigrants and immigrants' reaction to shy away of government because of that, that may be increased to some degree. That just means trying harder, working through leadership of communities. That's a key way to deal with it. And coming up with things like communicating, with Asian Americans, it's difficult. You're talking about over 18 different languages.
VICE CHAIR EARP: Exactly.
MR. IGASAKI: But finding ways to communicate through multilingual media, having some diversity in your own staff so that you have people breaking through. You can see in both L.A. ‑‑ I know because I was here that some of the breakthroughs occurred because of diversity in the leadership of those two offices, Houston's a leadership issue as well.
The woman who was later directing San Francisco was directing Houston. She put a huge emphasis on outreach, not just to Asian Americans but African Americans, Latinos, and others. And I think that broke through and made a difference, so I think, these things are out there. I think that indicating that the job of this agency is not enforcing immigration law, it's not going to allow anti‑immigrant feeling, because that is what this agency is about. It's about fighting discrimination.
I think part of the Asian experience, and Latino experience as well, but I think Charles will speak to, is that we're kind of perpetual foreigners, five, six, seven generations in the United States. People came over in the 1840s, still are competent in their English, and still are held back because people think that they're not so good at communications because of it not being their native language. Those sorts of things are always going to be there. But I think that the proof, of course, is in the pudding, the outreach by the agency. And, frankly, as I said before, taking on some strong cases will build that trust.
VICE CHAIR EARP: You raise a good point. Maybe we don't do a good enough job of reiterating that immigration status is not significant to us in taking a charge. It's irrelevant to us in taking a charge.
MR. KAMASAKI: I would not have much to add except to reinforce a couple of points. One of those is, of course, it is true that questions about the immigration status of Latinos and Asians to some extent are perpetual, I guess the point I was trying to make is when there are times when a backlash may be looming, a couple of things seem to happen which require some vigilance. One is those who might be inclined to discriminate seem to be buoyed by that and feel some sense of protection. And those who are victims of discrimination often feel intimidated in that kind of environment. So I think both kinds of outreach efforts need to be done.
I would say the other thing is as a manager, you know, I am a real sort of "Eat your vegetables" kind of guy, you know. There are not real easy ways to solve hard problems. And typically it requires the work that was begun under Chairman Casellas and Vice Chair Igasaki, a really hard work of making it a priority, providing training, increasing the diversity of your staff, and holding people accountable. And I think over time, those are the kind of actions that will produce change.
VICE CHAIR EARP: Okay. Thank you.
CHAIR DOMINGUEZ: Thank you, Madam Vice Chair.
COMMISSIONER SILVERMAN: Thank you, Madam Chair.
Ms. Frye, somehow I feel more comfortable calling you Jocelyn.
MS. FRYE: That's fine.
COMMISSIONER SILVERMAN: We've known each other that long, I guess.
MS. FRYE: That's right.
COMMISSIONER SILVERMAN: I know that many of your suggestions that go to analyzing trends in data have a lot of support at the Commission. And these are consistent with many of the Systemic Task Force recommendations, which we adopted, such as the recommendations to study charge and industry and demographic data to get a better sense of how we could use our resources more strategically.
But in analyzing specifically the issue of how we handle race charges, do you think it's enough for the Commission to just look at the numbers or should we have a more comprehensive approach to look behind the numbers to see how we are handling these and other charges?
MS. FRYE: Well, I definitely think it's the latter: the comprehensive approach. As I mentioned earlier, when we looked at the Commission's charge data, we looked at a number of issues. I highlighted the race discrimination findings, but we looked at sex discrimination, age discrimination, disability. And they were fascinating. It was really illuminating to look at your charge data broken down by race, ethnicity, and gender. Things that looked like, you know, they were pretty clear on the surface were more complicated when you looked underneath those numbers.
So I think definitely a comprehensive approach, you know, based on the advice of the folks in your research office I think could be quite useful.
I laid out some suggestions just based on what I knew based on our sort of analysis of your data, but, you know, we are not the researchers. And there's a lot that you know, both about the strengths of your data, data that we don't have access to, that could I think be quite informative.
And I take to heart the point earlier that depending on the different groups you're talking about, the intake data alone may not be sufficient.
So I think that's a place to start. And it gives you some direction to go in, but in the end, I would encourage you to really look comprehensively at everything you have before you.
COMMISSIONER SILVERMAN: Okay. Professor Holzer, I was sort of struggling with something you said. In your discussion about how the increased rates of incarceration of black men feed into discriminatory assumptions and behavior by employers, you suggested that if employers were provided with accurate information through criminal background checks that it might help in the hiring. And it might actually help in the hiring of black men.
But you also gave that statistic that one‑third of black men are incarcerated. So, actually, background checks could have a disparate impact on black men. What does the EEOC do practically with this advice? I mean, how do we grapple with that?
MR. HOLZER: It's an important question. And there's not an obvious answer to that. I think the simple fact that so many black men without criminal records are treated as if they have them I think is a very serious concern.
One‑third of black men having criminal records is a terrible number, a very discouraging number. Still, two‑thirds do not have it and face barriers in the labor market at different levels of education. So I think in some ways, combating that discrimination and perhaps making it easier for employers to get accurate information about criminal backgrounds might be helpful because I have a range of statistical studies, where we really find statistically that the employers who gather more information, whether it's about criminal backgrounds, various kinds of testing of skills, they actually do less discrimination, apparently because they have more accurate information.
And to the extent that some discrimination is statistical in nature, simply based on stereotypes about broad attributes of groups that may not apply to individuals, that kind of accurate information may help.
Now, I keep saying "accurate information" because I think one of the problems that's arisen is that within the last five to ten years, it's become very easy for employers to do criminal background checks over the internet, often from private companies and private sources. And there's no regulation about how those efforts proceed, how these private companies get the information; there's no consistent effort to make sure that the background checks involve conviction data, as opposed to arrest data. There's no effort to ensure that the data are accurate. And there have been a few studies that have looked carefully at portions of that information to find sometimes gross inaccuracies based on, for instance, the name. Individuals might share a name, and people might be wrongfully accused of having criminal backgrounds based on that.
So there might be some role for the EEOC to play and try to ensure that when employers use these background checks or any other tests of skills or things like that, that the information they get is accurate and that it's not used in a manner to further discrimination and, again, I think cries out for more research on how that would best be done and how the information right now might be misused as well as used.
COMMISSIONER SILVERMAN: Or just may be incorrect information.
MR. HOLZER: That's right.
COMMISSIONER SILVERMAN: Okay. Thank you. I see my time is up.
CHAIR DOMINGUEZ: Thank you, Commissioner.
COMMISSIONER ISHIMARU: Thank you, Madam Chair.
It's a fascinating panel. Thank you very much. It's good to see my colleagues here. We do get mixed up quite a lot. I can't begin to tell you how many times I've cut deals in Charles' name at various events.
COMMISSIONER ISHIMARU: So it's good to have you in the same room.
Professor Holzer, you talked about getting more of our data out and analyzing more of our data, especially the EEO-1 data that we have here and, for a variety of reasons, there's limited public access.
Can you talk more about what sorts of things we should be looking at? And perhaps, Madam Chair, it's a subject that we may want to find some way to further explore this with people of how we can do a better job analyzing all the information that's here in the agency, which there is a tremendous amount, how we better use that for both internal purposes and for external purposes?
But Professor Holzer, I was fascinated and would be interested in learning more about the types of things and for other panel members as well, what other things we should be doing in looking at the data we have in house.
MR. HOLZER: Well, I understand that the EEOC doesn't have the same charge that the Office of Federal Contract Compliance Programs at the Labor Department has, OFCCP.
And I spent some time at the Labor Department as their chief economist a number of years ago. So I became very familiar with how carefully they review the micro level data on the contractors and how that's part of their compliance efforts. And my sense was that this was a relatively effective enforcement tool and that contractors who knew that the data on these EEO1 forms could flag a much more extensive review of their operations, that that was an incentive for them to try to avoid discrimination in their practices.
I know that you may not be in a position right now to engage in those kinds of activities, certainly at the micro level. So one thing one could do is simply study those data for broad patterns by industry just to find disparities. Now, the disparities themselves may not indicate discrimination, as we know, but at least it creates questions about why in this sector or this body of firms, maybe firms of this size category or in this industry, why we seem to find these much larger disparities than in other places these might at least raise questions about - that might require further research, really, but it would inform us about where disparities exist right now that we need to investigate more thoroughly.
And, of course, at the micro level, if there were any way to use the information at the micro level, ‑‑ and I know right now there may not be ‑‑ but if under other circumstances if EEOC were charged to use those kinds of reviews more systematically, that might induce companies to pay a little more attention to their hiring patterns because they know they would be scrutinized more carefully.
MR. IGASAKI: Could I add something to that?
COMMISSIONER ISHIMARU: Absolutely.
MR. IGASAKI: Yes. I wanted to agree with Professor Holzer said. I think that the one thing that I would say is that I think EEOC has always done a reasonable job of looking at the big picture trends. That's what you use EEO-1 as well for.
I think that depending ‑‑ I don't know if there have been dramatic changes - I think the staff here is fairly good at more micro analysis. And whether you use it for enforcement or not, I would think it would be a good idea to do that to support it. But, even if not, I think it's something that I would urge you to do.
But it's really hard to see industry‑wide because everything kind of balances each other out statistically so you lose the reality of how discrimination might occur or how some factors may produce a discriminatory result, even if it isn't actual discrimination.
So I think that it's more taking some time and choosing some industries or maybe some geographic areas you might want to take a closer look at, take those micro statistics, do some analyses looking at different issues, issues related to the various statutes you enforce, factors you might particularly think need to be in play.
I think it's really hard to see the real life problems when you go to the nationwide view. When you look closer at a single industry, a single factor, a single company, a single community, you find out so much more. I think that is something I would urge.
CHAIR DOMINGUEZ: Thank you, Commissioner.
COMMISSIONER GRIFFIN: Vice Chair Igasaki, this is a strange turn of events here.
Some people probably don't know that I actually was a Special Assistant for Vice Chair Igasaki. So this is really kind of strange. I feel like I should be down there and he should be up here.
I know for a fact that you use Commissioner charges quite effectively to look at different types of employment discrimination, especially in the high tech industries. Do you have any recommendations for us on how to use Commissioner charges in this area of racial discrimination, any advice?
MR. IGASAKI: Right. I mean, basically, you know, you don't want to use them irresponsibly, but I think the Commissioner charges if you look, for example, at some very egregious statistical analyses you may stumble upon and some initial inquiry leads you to believe that this isn’t easily explained with some environmental or historical reason, that may very well bear the use of a Commissioner charge.
The other thing is I think media is one way to see a lot out there. One case that I heard about was it was reported through one of our field offices they had seen a news report where an employer essentially admitted discrimination on television. And, even though a complaint wasn't filed, that seems to me adequate grounds for a Commissioner charge.
So monitoring the media, looking at the statistics you might see, and I know the Commissioners spend a good portion of your time ‑‑ and you wrote many of my speeches for me when I did this ‑‑ traveling around the country speaking to people, meeting with employers. You oftentimes will hear from employees who complain about something maybe follow up with you. That was a good portion of my concern from one company to another because I would hear repeated problems of a similar nature from one company. That might lead me to ask some more questions, maybe talk to some employee groups, talk with our local office in that area. And if it's supported then, then I think a Commissioner charge may also be used.
But I think it's looking for some tag to make you believe something wrong is going on, especially something that might not bear itself well for something coming forward, where it's ongoing employees. I think Professor Holzer noted that not many people come in with hiring information because they're trying to get a job or another job. So they're really not going to take the time to pursue an EEO complaint, or something for ongoing employees, where you don't want to mess with your company when you're still in the company. When they fire you, you have nothing to lose.
So if you hear of situations like that, supported especially from multiple sources, then I think it might be worth looking at the Commissioner charge as a tool.
COMMISSIONER GRIFFIN: Okay. Thanks.
I just have one other question, actually, either for the Professor or anybody else who can answer this. Beside testers because, you know, with that comes a whole other set of problems, especially for an agency like this, besides testing and auditing, does anyone have any other ideas of what we can do to tackle or increase in numbers of hiring cases? They are the most difficult. Anyone have any ideas that we could use?
MR. HOLZER: I would defer to almost everyone else on this panel, who has more knowledge of the legal and administrative issues. But it seems to me that it's very costly for a potential plaintiff. Okay, they've filed an application, they might have good reason to think that they were discriminated against, but the cost, the barriers for doing so are much greater than, for instance, if you already worked for a company. You have access to a much larger body of information. You have invested much more time and effort with that company.
So how can we reduce the costs to potential applicants? Are there organizational ways of reaching out to them and making it easier that if they have reason to think that their application wasn't treated fairly, to come forward? Are there forms of organizational assistance?
I don't know if there are or not, but I wonder if there are institutional ways simply of making it easier for them to bring whatever information they have, to bring that information forward and assistance to help them pursue it that would reduce those costs.
MS. FRYE: I think it's a difficult challenge. I mean, I understand the political complexities of testing. I wouldn't take that off the table particularly.
COMMISSIONER GRIFFIN: Oh, no. And I'm not suggesting by saying that. I'm just looking for other approaches.
MS. FRYE: No. I appreciate that. You know, one possibility is to consider whether or not there are some collaborative efforts that you could do on the ground level. Particularly I think of when other panelists were talking about outreach to the Asian American community or the Latino community.
There may be specific groups that you could work with to find out about specific industries where people are less likely to come forward. It might be a vehicle for using the Commissioner’s charge. It may not be as precise, but just, you know, an aggressive ongoing effort to do some targeted outreach around a particular industry or in a particular community where perhaps you see some charges might be a vehicle for really getting a better picture of what is happening at the ground level.
COMMISSIONER GRIFFIN: Thank you.
MR. KAMASAKI: I would add two things. One is that there are things that this Commission as a Commission and as individuals can do to, in effect, going back to one of Jocelyn's points, really facilitate and support more resources around those who are going to be working with community members to encourage filing of hiring charges.
You know, simple things as meetings, conferences, roundtable discussions if you frame that you recognize you have a problem, invite some foundation people, encourage them to put some resources on the table to examine these situations.
And the second thing I would say is there are still remarkable gaps with, for example, the residual analysis kind of research that Professor Holzer has talked about. Nobody has really done the ‑‑ to try and answer the question that Vice Chair Earp framed earlier, how much of the wage gap between, say, Latinos and whites is attributable to - and then going down the list.
COMMISSIONER GRIFFIN: Right.
MR. KAMASAKI: As far as I know, the last set of comprehensive multivariate analyses were done about a decade ago.
COMMISSIONER GRIFFIN: Thank you.
MR. IGASAKI: Your Honor, I think another aspect of that is to consider that there are a number of groups out there that do testing, not necessarily for prosecution purposes, for academic purposes, and for understanding industry better.
The IMPACT fund in California is one. A number of other places do that. Much of their information is public. And some of it might be if there is some discussion with them.
So I think that may be one thing to consider, to look at resources like that and to also utilize the outreach that your offices do. It's not just about knowing the people and going there for a reception. But with Asian people, you have to fry them some food, as you well know.
COMMISSIONER GRIFFIN: Good food.
MR. IGASAKI: But beyond that, it's talking to them about what they're hearing on the street in the Latino community, African American community, women or Asian Americans, whether they are hearing about employers that are going on.
That's where I heard a lot of things that got me going. I would go to a reception. And they would be saying, "Oh, this company does this all the time." When you hear it from more than one place, that's when you've got to get some interest. And if your offices are doing that, some of them, most of them, are doing outreach. But those who use that outreach to build relationships and have their feelers up for the community, you may be able to find information that way.
COMMISSIONER GRIFFIN: Right. Thank you very much.
CHAIR DOMINGUEZ: Thank you, Commissioner. Thanks, Commissioner.
You know, as I'm sitting here listening, both to your comments and to the questions, sometimes I wonder if we are applying traditional approaches in a nontraditional environment right now. And I would like to pose that to you.
For example, Ms. Frye, you know you have been monitoring our complaint activity. Over 50 percent of the charges that we're now getting are coming from small and mid‑sized employers. Some of the statistical references that have been mentioned certainly don't apply to the group. We have had charges more and more that relate to a workplace of 100 employees or less. That is the fastest‑growing segment of our economy: the emerging markets in biomedicine, biotechnology.
We have Fortune 500 employers who are in cities and states like California, 22 cities at least, maybe more, no longer have a majority population. They say, we just want to make sure that we get the best global talent that exists out there.
We have a lot of generational issues. You know, the behaviors of my children in terms of how they view work is quite different from the behaviors of my father and my mother and my grandparents.
We're still seeing same sex and teenage harassment in the workplace. They have been conditioned about what is adequate treatment in the workplace. We still see the Youth at Work Initiative the Vice Chair did. You know, we see all kinds of behaviors out there and generational gaps.
Our EEO-1 report has nine categories. We have been told by the researchers that we're really down to three categories in employment. We have got knowledge‑based workers. We have technical workers. And we have service workers. So the world is changing. And I'm grappling with all of this. The Commission, as has been alluded, has done extensive research, diversity in the legal profession, diversity in retail, all kinds of diversity research that we continue to do. We're doing a couple coming up, financial services, and the health care industry.
There's all of these factors that are converging upon us. And at the same time, you know, we still have a skills gap. We still have some of the other issues that you've alluded to, Professor Holzer, in terms of behavioral issues, students dropping out.
My family is the United Nations. You know, there's been what we call the mélange millennium. And that's why when Commissioner Griffin talks about over 60 percent of our charges are intersectional charges, that's the case because it's not just race, it's disability, it's national origin, it's gender, it's all of these things.
The mélange millennium, when you have the blending of races and ethnicities, is here. And it makes it more difficult for us to look at these things at a macro level. You really do have to peel some of these layers and wonder whether some of these things are beyond just the macro trends.
We had a case not that long ago where we had African Nationals preferring to hire African Nationals over African Americans. We see cases time and time again where groups from one ethnicity within the Hispanic community prefer to hire the same, members from the same group, similar with the Asian American community, where they prefer to do it. Having lived in San Francisco, I saw that time and time again.
So I don't know that there's an answer that we can have today, but I would just pose, are we really at a point where we are in our shared commitment to eradicating discrimination in the workplace? Are we really at a point where we have to revisit the traditional approaches that we have used to identify discrimination and really consider the trends that are going on and the new workers that are coming in and the new economies in which we live to try to come up with some fresh approaches?
MS. FRYE: Well, I'll start. You know, I certainly agree that suffice it to say the workplace is very different today and there are a whole host of complexities that make sort of simplistic analysis around race discrimination or any other form of discrimination very difficult.
But I guess where I would suggest starting is looking at the tools that you have. A number of the recommendations that I think people have put forward are very much aligned with how does this Commission, given what is happening in 2006, use the breadth of tools at its disposal to be sort of nimble and flexible and responsive to the discrimination that is happening today? And I do think it's certainly possible. That's why I encourage you to really look closely at the data because I think it can be informative of where you ought to focus.
But I also think it's important to remember that, even with the complexity and the emerging nuances in terms of race and culture, if you look at your own data, you see that there is still old‑fashioned discrimination going on every day.
CHAIR DOMINGUEZ: Oh, absolutely.
MS. FRYE: And some of those cases that you just think "How could they possibly be happening in 2006?" continue to happen. And they happen across generations. So clearly some of those stereotypes and core discriminatory attitudes continue to pass through, notwithstanding the changing environment that we live in. So that's one fresh reality.
The other piece that I would add to the discussion is that I do think we have to begin to think about what happens when you find so many intersectional claims, let's say, around race and gender or around gender and age.
You know, from my understanding of what is out there in terms of the legal case law, many of those claims, when people try to bring them, people have encountered a lot of difficulties. The courts are not yet really willing to embrace those intersectional challenges and look at the unique experiences of black women versus Latinos versus Asian American men.
And I do think that the Commission could play a lead role in putting out there these nuances and these different types of configurations that are happening in the workplace. There are a lot of folks who just aren't thinking about those nuances.
CHAIR DOMINGUEZ: Right. Well, I agree. And, again, if we looked at where the nooses and some of these other very egregious violations are occurring, they really are occurring in the smaller type companies and employers. And so it's a very interesting trend, where with diversity is now not just the law and a good thing to do, but it has been embraced by major employers as the economic and the smart business thing to do.
Now we're beginning to see the movement of those exclusionary practices down to the smaller employers. I also note the Gallop organization came out with a wonderful study, first time ever, in honor of our 40th anniversary last year, which shows that a third - 15% of all workers have perceived discrimination in the workplace. Granted, they included nepotism and favoritism, but of the 15 percent that perceived discrimination, 33 percent were Asian Americans, followed by Hispanics at 18 percent and African Americans. Yet, African Americans make up 35 percent of our workload. And Asian Americans make up three percent and Hispanics make up about ten percent, well, 50 percent of the 10 percent of national origin.
So there are huge gaps from the lens that we see at the Commission, the lens that is actually out there. So I very much appreciate your recommendations and your perspectives, but, again, I think that we need to continue to look at what is going on in the workplace today and how can we revise our approach because I think that if we look at the trends and we look at age and disability and all of these other factors and we look at the limited data that we collect based on those very broad categories, we really do have to start pressing down, I believe, at a more micro level.
MR IGASAKI: One thing that you had mentioned that I would like to ‑‑ I'm sorry. I read that a lot of what is going on and more and more discrimination takes place with small employers. And I think one of the ‑‑ of course, you have your jurisdictional limits that may make it hard to get those small employers.
The thing to remember, though, is that 40 percent of the charges come from the state and locals. And the state and local agencies, many of them don't have the jurisdictional limit. And working with them often helps you reach…, of course, your education will go to anybody in terms of reaching out to employers. Of course, if they don't think you'll enforce, then they're probably not going to bother to come to your sessions. But partnering with the state agencies, which many of your agencies and offices already do, a special focus on the smaller employers with an idea to that locale at Silicon Valley, for example, or the Southeast, whether different kinds of employers - I think specific outreach with your state and local partners might be very effective with your smaller employers.
CHAIR DOMINGUEZ: Great. Well, thank you very, very much again for your fine presentations. Before we invite the next panel, should we take a ten‑minute break? Anybody want to make a motion to do so?
COMMISSIONER ISHIMARU: So moved.
CHAIR DOMINGUEZ: Second?
VICE CHAIR: Second.
CHAIR DOMINGUEZ: All in favor?
(Whereupon, there was a chorus of "Ayes.")
CHAIR DOMINGUEZ: We'll reconvene in ten minutes.
(Whereupon, the foregoing matter went off the record briefly.)
CHAIR DOMINGUEZ: We will reconvene now and welcome our third panel. We very much appreciate the presence of two very good colleagues and partners of the Commission: Michael Foreman, who is the Deputy Director for Legal Programs for the Lawyers' Committee for Civil Rights Under the Law; and Joe Sellers, Attorney with the firm of Cohen, Milstein, Hausfeld and Toll.
Welcome back. Good to have you with us. I will open it up with Mr. Foreman.
MR. FOREMAN: Madam Chair, Madam Vice Chair, Commissioners, I guess one of the things between the last panel is we pick up pieces where everybody took all of our other ‑‑
MR. FOREMAN: The Lawyers' Committee thanks you for the opportunity to address this vitally important issue. Unfortunately, Barbara Arnwine, because of illness could not be here. It is something she really wanted to do, and she sends her sincere regrets. This is near and dear to her heart. It goes to the core of what the Lawyers' Committee has done since our inception. I probably will not do her words justice, but I will do my best. If you have seen Barbara speak, you will know I am trying anyhow.
I want to regress just slightly. Some of this has already been covered, but we're in 2006. And why are we having this discussion? I think that’s a little bit of why is it important that you issue this Chapter? And I think it was last weekend. You probably all read this because it involved your agency. But it led off, so they say, some of them anyway, that discrimination is not a problem in America anymore. And I would imagine that those some would say race discrimination, that's something we dealt with a long time ago, that's something that's behind us. You’ve heard the statistics. And I'm not going to go through a lot of statistics right now. I think we’ve covered some of the realities.
One of the things I do want to drive home on those realities, I think the Professor reiterated this and Commissioner Ishimaru talked about it. When you're talking about the unemployment rates, when you're talking about the disparities in salaries, when you're talking about living wage rates, when you control for things like education, those disparities do not go away. And that's something to keep in mind as we move forward the best we can when we use social sciences. We do not explain away those disparities.
So in that context, the stark realities tell us that the Chapter that you all have issued is extremely important, is timely. And I think the fact that you have issued it almost in tandem with the Task Force Report on Systemic Discrimination is particularly important because I think they really do work in tandem and they should work in tandem.
To underscore sort of where we are in discrimination before I move to what I think are some of the emerging issues, I just want to give a couple of examples so we don't forget where we are in 2006 of discrimination. And these are from our docket, and these are real cases. These are what I call the sad but true docket. And I call it sad but true because these facts are not being contested. What is being contested is whether the employer is ultimately liable but not that this occurred, where we represent a group of black workers down in the South who complained about racism. And the racism they complained of was a whites only bathroom with a sign that said, "Whites Only." And when they complained about it, the "Whites Only" sign was removed. And whites were given keys, they weren't given keys. And when they continued to complain, they suffered adverse treatment.
We represent a young Afghan woman who worked for a major military contractor. She complained about horrible working conditions. In the course of that, she was subject to comments about her perceived religion, about her national origin, about her sex, and was told, "You know what we did with women like you in Bosnia." That's the type of thing that goes on.
Another example ‑‑ and I apologize for the offensiveness of some of the language, but I think that we should all take into account that as offensive as it is here, think what it sounds like to the young female who complained about racism and being called racist names and her supervisor said, "Nigger, nigger, nigger, what are you going to do about it?"
That's some of the stark realities that we're dealing with. Do we need the compliance manual to deal with those? I don't think we need the compliance manual to deal with those. But what it does is send a message that this still needs to be addressed, racism still exists.
But moving beyond that, some of the other points ‑‑ and I think where the compliance manual and the Systemic Discrimination Task Force work in tandem is what I call the virtually "Whites Only" sign.
We're dealing with a case in Northeast. Police force 100 percent white, has a several hundred per person police force, 100 percent white, almost all female. Surrounding area is very racially mixed. They have no residence requirement.
Now, they don't have a sign up that says "Whites Only," but the selection process is a virtual "Whites Only" sign. And the only way you are going to be attacking that is through a disparate impact type of analysis, which is extremely important. And your compliance manual deals with exactly that type of issue.
I think ‑‑ and I was very happy to hear some of the comments this morning ‑‑ that these two are married, "these two" being the compliance manual and the task force, because I think they have to be married.
If you are going to attack racism in the workplace, you need to attack it through a systemic investigation attack. And I think it was Dianna Johnston who talked about one of the things that both the compliance manual and the task force talk about as ferreting out hidden discrimination.
And I think that's really one of the things that we all grapple with. How do you get to that internal bias that many of us may not want to admit that we have? And I think that is going to be the fight in the future, which leads me to what I want to highlight, sort of two emerging trends.
The one I want to talk is sort of unbundling. What am I talking about? What I am talking about there is a situation. And we talked about it earlier today. Credit scoring, for example, is being used by 30 to 40 percent of employers as an employment selection device, but they don't use it alone. It is bundled with the traditional background check. So the background check will come back with probably credit references, credit scoring, employment references, and a traditional background check, and part of that may be a background check on either arrest records or convictions.
Most persons affected will simply be told "You didn't get the job." There is no way that they know and, indeed, they're not told that "You were rejected because your credit score wasn't high enough," "You were rejected because you had arrest records."
One of the things this Commission can do is try to attempt to unbundle those in your investigation so you can try to make a determination what is occurring because the applicants simply don't know or they don't have the time or desire.
The second aspect I think, which will be a cutting edge issue, which you have addressed in your compliance manual, is this whole issue of intersectionality. And, just to put it in a legal context, you have appropriately dealt with it in your compliance manual, where you're dealing with discrimination not in the disjunctive, where it's either race or sex or national origin, but in the conjunctive, where it's the combination of those factors.
Indeed, our young woman from Afghanistan may be confronting just that. Is it really because of her national origin or her race or her religion or her sex or is it a combination of all three of those?
The courts have not dealt with this. Well, they have dealt with it, but they dealt with it years ago. You cite in the compliance manual two of the leading cases, where they indeed recognize that the appropriate way to investigate things is, in fact, to look at the combination of the two and not to separate out.
There is another case that's traditionally cited out of the Eighth Circuit, where they came to the opposite result ‑‑ the Eighth Circuit did not address it, the lower court did ‑‑ where the court, frankly, said, "We can't open Pandora's box here because we are afraid that you will have any combination of these factors. And there is no way the courts can deal with that."
You all have taken the appropriate legal standard here. I think it is incumbent upon you and us in working with you to make sure that that standard, in fact, gets realized because, as we know from the Burlington Northern argument just on Monday that your sister agencies don't always follow the aggressive lead that you take in the enforcement of these. And I think there are two areas that we need to work cooperatively to make sure that the law develops in the appropriate manner.
CHAIR DOMINGUEZ: Thank you very much, Mr. Foreman.
MR. SELLERS: Madam Chair, Madam Vice Chair, members of the Commission, thank you so much for having me here. I commend you for holding a meeting on such an important topic. And I hope that what I can bring as a perspective is the perspective of somebody who has been litigating these cases for more than 25 years. And it provides me with the perspective that I think I hope permits me to identify some priorities that I might suggest to you in your months and years ahead.
First, let me commend you for the Chapter in the policy guidance that was issued. I think it's a terrifically done job. I think, although race discrimination is certainly not a new phenomenon and it is certainly not a new priority for the Commission, I think it is important to reissue and expand upon the policy guidance in this area to enhance the examples of the kinds of conduct that can constitute race discrimination and color discrimination today. And I think it will really enhance the guidance that you provide to the field going forward and probably to employer and employee alike. So I want to commend you on that.
I am obviously engaged in the private enforcement of these laws. And I'm here to tell you something you probably already know. And that is that while we are very busy in the private enforcement of these civil rights laws, we can't and shouldn't be doing it alone. And I think there are opportunities for the Commission and for private practitioners to work in partnership. It's not the subject of today's discussion, but I want to invite you to join us in thinking about that a little bit. There are ways we can each help each other in this regard. And I think, particularly in areas dealing with race and color but some of the other areas as well, there's a lot of room for discussion there.
I’d like to turn to some areas where I think based on my experience and what I have seen from people on whose behalf we’ve brought cases and those we have declined to represent but, nonetheless, believe that there may be evidence of real concern, several areas that I would like to call to your attention. Most of them have been addressed today in one form or another, but I would like to highlight them because I think ultimately given the inevitably limited resources of the Commission, you are going to need to and already do set priorities. And I want to invite you to consider some of these.
The first, and one that has already gotten some discussion, is discrimination in hiring. The reason why those cases are so difficult to bring and, indeed, the discrimination is difficult to detect and the Commission gets far fewer charges, is because for most people who may be the subject of hiring discrimination, they lack a comparator with which to assess whether they are being treated differently. They may find the treatment at the workplace rude or in some way unpleasant but have no basis on which to conclude that the treatment is discriminatory. And that denies them the opportunity to have an evidentiary basis for a suspicion they may have.
Others, who may indeed believe or have reason to see that there is evidence of discrimination in different treatment individually are so intent on getting a job and so desperately need a job that bringing a charge or bringing litigation is far from their priorities.
So, regrettably, a good deal of the mechanism that we have available in other areas; that is, the private initiation of charges, as a mechanism to advise the Commission about the kinds of concerns employees have in this country, doesn't work here.
Now, there are other mechanisms the Commission can use to start to examine industries and even places of employment, although they are imperfect, but the alternative is to allow the discrimination in hiring to continue to go undetected and unchallenged. And I trust that that is not the goal of this Commission.
Certainly one way to do it is ‑‑ most employers, by the way, as you probably know, do not retain applications. So to the extent that the employer is not engaging in conduct which deters applicants, which would make the numbers of applications that they receive themselves an unreliable measure of interest, employers are, nonetheless, in a position to be assessed in their hiring records compared to the population of employees or persons who may be available in that community who have the requisite education or prior experience to be eligible for employment. It doesn't mean they would have been hired, but where an employer's hiring decisions and results are dramatically different than the population of candidates who were eligible to be selected within the geographic area where the employer normally makes selections, that's a worthwhile comparison.
Courts have recognized that as a legitimate comparison. I suggest to you that the Census collects a lot of that information and you have access to it. And labor economists work with it regularly. So that’s one mechanism that is possible to start to at least examine those industries and enterprises where they seem to be falling short.
A second, which I want to touch on briefly ‑‑ and if you wanted me to discuss it further, we can in questions ‑‑ and that is the use of employment testing. It's had some discussion about it already, but I remember quite vividly that under the stewardship of Chairman Kemp and Vice Chair Silberman, the Commission issued policy guidance recognizing that testers should be permitted to bring charges to the Commission, that testing is a valuable tool to be used for investigation and potentially enforcement. I leave to you in what circumstances you would use it, but it is the kind of tool that has now grown considerably in sophistication that could be used for those smaller employers, where statistical data might be a more blunt instrument in assessing their hiring records because they are sufficiently small. So I would suggest both of those as mechanisms that might be available.
A second topic I want to urge you to consider a priority is that broadly of stereotyping. I think from my experience today in the more than 25 years I have been doing this, really, most every kind of employment discrimination practice today in the workplace involves some form of stereotyping.
What makes stereotyping so difficult to address is that we all engage in stereotyping. We wouldn't survive if we didn't. So there are many ways in which each of us use stereotypes and do so quite effectively and probably legitimately, and the problem is ferreting out the use of impermissible stereotypes and the extent to which they actually influence employment decision‑making because that's when they become unlawful, and that is a difficult undertaking, but it is, I think, increasingly the case that stereotypes influence to the extent there are problems in the workplace, disparities that may be observed and the like. I think stereotyping is often, at least in part, a factor.
And persons who harbor stereotypes that may be impermissible may be unaware that they are being used. They may be, therefore, unwilling to even consider that their use of stereotypes, if they were even advised of their use, is anything impermissible. And they may be less susceptible to education because they're not even aware that it's a problem.
So all of those make stereotyping, I think, fertile ground for further study by the Commission. I think there is even doubt amongst some as to what stereotyping is, even today, even though the Supreme Court has addressed it on more than one occasion.
I suggest to you that this is an area that the Commission could use its considerable expertise to consult with professionals in this area, whether they are industrial psychologists or economists or others, about the phenomena of stereotyping, about how it influences behavior in decision‑making, about how it can be detected, about how you can educate people about its use, and about what kinds of mechanisms have worked in places of employment to help curb its influence because some employers have been very effective in recognizing that stereotyping is there, we're not going to change it, what we're going to do is erect in the workplace mechanisms, workplace rules and procedures, that will curb the exercise of the stereotyping and help managers be more sensitive to the use of stereotypes.
These stereotypes, of course, are sometimes more troubling when they are exercised or used by employers who believe they're using them in paternalistic ways. This is somewhat the latest of the genre of stereotypes that I have seen. That is, the employer who elects voluntarily to give a person of color, for instance, a lighter work assignment for fear of embarrassing him or her, hoping that in doing so, they're helping the person, rather than hindering the person's growth and development.
So there are many forms and many faces that stereotyping takes. And it's, I think, one that, unfortunately, is often undertaken in the belief that it's benevolent, undertaken with beneficence, rather than malevolence. And I suggest that both are unlawful if they lead to employment decisions based on race or color or other characteristics.
A third area I want to address is employment testing. And by that, I don't mean civil rights testing of the sort I described before but the use of testing instruments by employers.
Our experience is that this is a phenomenon that is substantially increased over the recent years. Of course, we have the Griggs case from the 1970s, and there was a period when employment testing was fairly common, and then it fell out of favor, and I think it's regained a great deal of interest for employers, partly because it's viewed as and is, indeed, an inexpensive mechanism for screening candidates. It's also a mechanism that has the advantage of appearing, where the results appear to be objective, and employees find it often hard to challenge because they have no ready mechanism to attack what appears to be a scientifically derived result.
So I suggest to you the two areas that I have seen to be most troubling, not to suggest there aren't others, are cognitive tests, which are most susceptible to adverse impact, and personality tests, which are the new tests du jour, if you will, popular by many employers, where they select certain personality characteristics to identify and use those as a mechanism for predicting what type of person they would like in the workplace. And those characteristics can easily have adverse effects on the basis of race. And many employers have no real way to know how to validate these tests, even insure that they are fair predictors of success on the job. This is another area where the Commission's expertise could be very important and where enforcement efforts could be particularly important because most private practitioners lack the resources to be able to undertake these kinds of challenges. And most individual employees either have no means of knowing whether they have been discriminated against on the basis of the test operation or if they have some reason to think so, it's a very complicated endeavor to study the test, study the test validation study if there was one, and to look at adverse effects. So I commend that to you as well.
The fourth issue I want to address is one that we have discussed in several different guises, but I want to bring it up in the context of the plight of the young people, African American young people, today. As we expand greatly the direct service sector of jobs in this country, many of which require more limited educational requirements, those jobs are often and ought to be very accessible to our young people or young people of color particularly. And I think there are roadblocks and obstacles that are sometimes erected in the interest of trying to ferret out people who are perceived to be unreliable or untrustworthy.
The most pernicious of these means of blocking people's selection is I think the use of criminal records, which we have talked about. But I want to applaud the requirements that were articulated in the policy guidance that employers would have to use in order to conclude that they fairly are using prior criminal records because I think the answer, in part, from questions before about how do we deal with these criminal records and the incidence of a population that may have a high proportion of members who have had some dealings with the criminal justice system, is to recognize that not all criminal records ought to be disqualifying.
We have to consider the nature of the crime that somebody may have been convicted of. We have to confirm that there was a conviction and not just an arrest. And we have to consider the nature of the job. There are certainly some kinds of crimes that would not be disqualifying for people holding certain kinds of jobs. And we have to consider the age of the conviction.
Somebody's youthful indiscretion ought not to be a disqualifier for years and years thereafter. And a simple screen by an employer that says, "I'm not hiring anybody with a prior criminal record because I am judging them all to be untrustworthy" is I think a place where the Commission could really devote some attention and have some impact.
The last area I want to address quickly is that of systemic discrimination. And I want to join Mike in commending you also, not only for the issuance of the terrific Systemic Task Force Report but also for holding in such close proximity this hearing shortly after you issued that report because I do think that a lot of race discrimination, color discrimination is systemic in nature and that it is the systemic work of the Commission that probably gives it an opportunity in some ways to make the most unique contribution because there are so few people in the private sector who are capable of undertaking significant systemic litigation.
And also, I know you know this, but I think you have resources, particularly through the access to the EEO-1 form data, which is not perfect by any means, but it is a means of looking at and scrutinizing industries and companies that those of us in the private sector do not ordinarily have an opportunity to see outside of litigation.
And it gives you an opportunity to look for patterns, look for trends. I also suggest that you consider in the course of your systemic litigation program, the pursuit of not only pattern and practice cases, but disparate impact cases. There are a lot of policies which themselves do not on their face appear to be discriminatory, but which operate in a discriminatory way.
I commend you one particular area, which is the subject of a lot of debate right now, but I suggest that it's one that you might want to wade into, and that is challenges to employment policies on grounds that they're excessively subjective, because it's not that all of them are, and only when they have an adverse effect, obviously, would they operate in a discriminatory way. But I suggest that that is an area where the Commission could make a contribution, both in terms of its enforcement activity and in its amicus program because its views I think will be well‑regarded by many.
With that, I will stop. Thank you.
CHAIR DOMINGUEZ: Thank you very much, Mr. Sellers.
VICE CHAIR EARP: Just a comment. My staff and I were talking at the break about all of the concerns that we have in this area, but after listening to the morning's panel, we were kind of thinking we should narrow our focus some. And after listening to you, I'm convinced that that is what we should do. And for my part, I plan to spend the next couple of weeks trying to focus specifically on hiring and to see what more we should be doing, just trying to get a better handle. Hiring in and of itself is broad scope, from what Mr. Foreman talked about in terms of the sad but true docket but also unbundling the credit scores from selection devices and how it's used as a selection device. That in and of itself is going to take some time and some thought. And then the things that you have just spoken about, Mr. Sellers, regarding systemic testers as well as testing, I just want to assure you that you will be hearing from my staff and I as we try to focus in specifically on hiring concerns.
MR. SELLERS: We look forward to being helpful.
CHAIR DOMINGUEZ: Thank you, Madam Vice Chair.
COMMISSIONER SILVERMAN: I just want to take this opportunity to publicly thank both of you. Joe Sellers particularly came and talked to the Systemic Task Force early on, and we had numerous discussions going back a couple of years on the subject, so I just want to thank you so much.
MR. SELLERS: Thank you.
COMMISSIONER SILVERMAN: And thank you for your kind words. And, Michael, I know you also sat down and gave us some feedback. And so thank you.
I just had one question for Mr. Sellers. You talked about challenges to employment policies that are excessively subjective. Can you elaborate on what you're talking about?
MR. SELLERS: Sure. Actually, there's a decision by the Supreme Court that might be worth ‑‑ I'm not sure I want to try to paraphrase the Supreme Court, but it's the Watson v. Fort Worth Bank decision, where the court really attempts to explore through Justice O'Connor's opinion the concept of how excessive subjectivity is susceptible to a disparate impact challenge and how it can be a mask for discrimination, but I'll give you an example.
In a place of employment, if employer ‑‑ and I'm not suggesting this happens every day, but if an employer said to ‑‑ I have had a trial on the basis of this practice, though ‑‑ its managers, "Just select the person you think is best," that's all the criteria they set for the jobs. Now, you know, the employer's view was, "We trust our managers, and we recognize they have an incentive to pick the best people because they will help make them look good."
But as a phenomenon, in the field of industrial psychology, it's well‑documented that people left to their own devices ‑‑ and this is endemic to human behavior, I'm not suggesting there's anything nefarious about this ‑‑ tend to favor people like themselves. That's just the way we are.
And so employers would be well‑suited unless they have a particularly diverse management workforce and are willing to roll the dice that they will make fair and just decisions. The alternative is that they erect a series of policies and procedures for decisions; they establish written criteria that are specific enough to guide the managers' discretion, they train them on how to use them, they monitor the results and the like.
And those are things that I think most employers do in one form or another. So it's not every employer that I attribute this conduct to, but I think the Commission's interest in this would have the favorable effect of causing employers to be extra thoughtful about how to design selection procedures, in particular, in a manner that will give appropriate guidance and reduce, not eliminate but reduce, the level of subjectivity and channel and guide managers' exercise of that subjectivity.
Hopefully that answers your question.
COMMISSIONER SILVERMAN: That really does. Thank you.
VICE CHAIR EARP: Can I follow up? Do you speak or have you spoken before SHRM, the Society for Human Resource Management, and various industry trade groups and shared the same perception with them?
MR. SELLERS: I have talked to SHRM about this. And I think they listened, and I thought they found it interesting. I have also spoken to some large companies. I'm, in fact, scheduled to speak with the human resource officers at a very large government contractor in two weeks on this topic.
VICE CHAIR EARP: Oh, I think we're going to be speaking to the same group.
MR. SELLERS: Oh, I think we are.
VICE CHAIR EARP: Be sure to mention what we've just said.
MR. SELLERS: I will. I think we are, as a matter of fact. But, anyway, the point is this is something I speak about wherever I have an opportunity because I think it is a growing phenomenon. I think the Supreme Court has established that this is an area that is actionable, but we would really benefit from the expertise of the Commission in this area. It's not an easy area. Employers and employees disagree over how to approach it. I'm not suggesting that either is right or wrong, but I think we would really benefit from the thoughts and expertise of the Commission.
VICE CHAIR EARP: Thanks.
CHAIR DOMINGUEZ: Thank you, Commissioner.
COMMISSIONER ISHIMARU: Thank you, Madam Chair.
I’d like to go back to matched pair testing for a minute. You had mentioned the guidance that was brought up by Chairman Kemp and Vice Chair Silberman back in the early '90s, I believe.
From my experience in the fair housing field, there was a similar initiative at the time at the Justice Department under Dick Thornberg, who was the Attorney General at the time, to create a fair housing program at the Department of Justice, which was started then and continues to this day, strongly.
I have always been fascinated at the split, how in the fair housing field there was strong bipartisan support for matched pair testing and in the employment field, it's been much more difficult, and I was wondering if you had more thoughts on why it is seen as an entrapment device in the employment field; whereas, in housing, it's seen as an enforcement tool.
MR. SELLERS: Well, I guess I'll speak to that first. Mike can jump in. I think, in part, the answer is that the use of paired testing in employment is still relatively new, and although it's been more than a decade since the Commission has issued policy guidance on it, there has been very little use of employment testing.
At the outset of fair housing testing, the same concerns were raised. It took a decision by the United States Supreme Court in the Havens decision, Havens case, to I think endorse and end the debate about whether this was some kind of slick entrapment or whether this was really an appropriate way to proceed.
So I would like to think of it as more of a reflection of an evolution in our thinking about matched pair testing for employment than an enduring skepticism about it. And I think it's just a matter of us having more experience with it.
MR. FOREMAN: I would echo those sentiments. I do think there are a couple of factors that you deal with in employment, I’ve worked in housing testing, it's a little bit more of a simple model, one of the things you run into ‑‑ let me go back. I think it’s extremely important that enforcement agencies do it. Whether they use it in court is a whole different issue. It has a real deterrent impact out there if employers think someone walking in the door may or may not be a tester, or maybe employers do things a little bit differently just for the deterrent effect.
On the legal aspect of it, for instance, on the credit reporting, one of the things you run into is that you would have to create a credit record that, would indeed, be a false credit record. And we’ve explored that and what you do is you run into a violation of several fair credit reporting laws that you simply could not put a tester up against.
Now, I think in terms of getting in the door on some of the beginning jobs, I don't see the legal impediment. I think it simply hasn't been developed as well as it can. And I think it also is good for the social science research.
I think it sends a real message that we can talk about the disparities in income and job opportunities, but the matched pair resume testing really takes away a lot of those issues. It sort of hones in more on what is driving that, and in the studies that you all cover in your compliance report and others, I mean, the race is clearly a driving factor. And how to get at that is what we all struggle with, but I think it is an important tool and it can be developed. We just need to be careful as we move up sort of in the difficulty of the job.
MR. SELLERS: May I add one quick thing about that on that issue? First of all, employers in large companies often use their own testers. They're called shoppers. A lot of them, they dispatch them to see whether they're getting similar service at a retail store and the like, so this is not a foreign concept to them. It's a question of whether some of them don't use it and some of them do and a question of whether enforcement agencies are prepared to undertake that.
The second is ‑‑ and I can't speak to this authoritatively, but you can check with your friends at the Department of Justice. I know that they concluded from some research that they did and issued some definitive memos on this that some of the laws that would have precluded private organizations from undertaking testing because it would involve certain forms of misrepresentation about credit and the like would not bind the Justice Department and did not bind the Justice Department in certain forms of fair housing testing because it was a law enforcement activity.
And I recognize this agency wears many hats, but certainly one of them is a law enforcement operation. And I think you have authority that those of us in the private sector don't have to look at this a little differently.
COMMISSIONER ISHIMARU: Thank you both for coming. I found it very helpful.
Thank you, Madam Chair.
CHAIR DOMINGUEZ: Commissioner.
COMMISSIONER GRIFFIN: I wanted to ask you, Joe, a little bit more about the stereotyping.
MR. SELLERS: Sure.
COMMISSIONER GRIFFIN: I actually haven't heard this before. And, you know, although we know it exists and I know, especially for people with disabilities who are seeking employment, ‑‑
MR. SELLERS: It's huge. It's huge.
COMMISSIONER GRIFFIN: ‑‑ that is exactly what is happening. But I guess I never really thought of it from the standpoint that you talk and write about it in that there actually have been cases looking at that. Can you talk a little bit more about that ‑‑
MR. SELLERS: Sure.
COMMISSIONER GRIFFIN: ‑‑ and how you get at that? How could we as the EEOC get at that as a reason?
MR. SELLERS: Well, the latter question is a very hard one, how do you get at stereotyping as the operative phenomenon in a decision‑making process, because, as I said before, most people, I think many people, who use stereotypes aren't even aware they're using them or if they think they're using them, they think they're using them in a beneficent way.
COMMISSIONER GRIFFIN: Right, especially with people with disabilities.
MR. SELLERS: Yes. Sparing somebody with a disability from a job they think they would fail at, rather than thinking it's an opportunity to give them the chance.
There's a multitude of literature, social science literature, on the use of stereotyping. And there is some case law that's been over the last five to ten years developed, where courts have recognized use of stereotyping.
There is particularly a Supreme Court decision, the Hopkins against Price Waterhouse decision that involved sex discrimination and the court's endorsement of the use of stereotyping and an expert in stereotyping to help evaluate remarks that were made about a candidate for a partnership at an accounting firm on grounds that she was disqualified because of sex stereotypes.
So we have again an anchor in a fairly substantial body of jurisprudence. The social science research I think is where the action is. Because our ability to understand how it operates, how to detect it; is something where the social scientists, as I have talked to some of them, are actively engaged in various kinds of empirical experiments as well as other tests to see if they can isolate them, isolate the effect of stereotyping, help people to recognize and be more aware when they use stereotypes, rather than eliminate them, because I don't think you can eliminate them. And I think the Commission may want to consult with some of those people. I'm happy to try to introduce you to some of the people.
COMMISSIONER GRIFFIN: That would be great. Now if we can only get at the courts and their stereotyping, we would be all set.
MR. SELLERS: Well, I can only handle so much in one hearing.
COMMISSIONER GRIFFIN: Thank you.
CHAIR DOMINGUEZ: Thanks, Commissioner.
Just a couple of observations. I would be very curious myself to see what the reaction would be at SHRM with respect to the comment. Having been a director of executive staffing, you know, I think we all when you talk about selecting the person that you think is best, I think we all do that. I think we all have hiring and selecting responsibilities, but there are certain implications involved in that process.
The question that I would have is, you know, if you have a very sophisticated employer who has an entourage of processes in place, you say, "Select the best," that's an assumption that you have gone out and you have reached out to a diverse talent. If you have word‑of‑mouth referral and other kinds of referrals that we know operate to exclude, selecting the best from that pool has significant issues.
So you might get an up rise if you usurp the rights of the hiring manager to select the best, but I think the message here is let's make sure that the assumption is correct that you have, in fact, reached out to a broad pool of candidates.
One of my employers when I was working in the private sector, we had a serious glass ceiling issue. And at the time that the micro management took place was at the time when they couldn't find women or people of color to move into those senior vice presidents and upper levels. So the chairman put out a rule saying, "No one is going to get promoted unless I see it, unless you defend your action."
So I think for a certain level of employment, that that would be well‑done. But when you're dealing with a General Electric with 300,000 applicants and all of that, you know, that might be a bit more difficult.
The other point I wanted to make had to do with testing as it relates to some of the cognitive and personality. I really think that is a new issue, a new wave issue, of potential discrimination. A number of employers, most diversity officers ‑‑ in fact, I would even get out on the limb and say this ‑‑ don't even know that there are these types of tests that are taking place, particularly as they relate to the upper levels of executive selection.
I as a consultant have been privy to them, but in exploring have realized that this is something that is very well‑kept. When I've asked questions about "Has this been validated?" there is no knowledge. They don't even know that it is happening. And you are dealing with such a small pool that oftentimes the statistical significance is not there, so I really think that it would serve all of us well to put the spotlight on this particular issue because I think it’s going to be growing in importance.
MR. SELLERS: May I add one thing? And that is one of the places where it is used increasingly and I think emphasizes the extent to which we ought to be focusing on it is in applications taken over the internet, which I know has been the subject of a lot of attention recently, where employers advertise vacancies on the internet and then administer tests on the internet and only consider candidates who pass whatever form of test it is.
Those tests are administered to thousands and thousands of people every day because often what they do is to build a bank of candidates from whom they can consider for later vacancies. And they have to be screened in advance, and they're screened through the use of tests.
So I would commend and underscore your views. I think it's really worth some attention.
MR. FOREMAN: If I could just reiterate, I think you hit the nail on the head when you go on these smaller pools, that you're in a unique position, both from bully pulpit and everything else, to drive home a point that we may not be able to get at because we don't have the numbers to build the statistical case along the way, but I think you can push that message, and I would just like to follow up on the one point going back to the selection of the best, and. I think that ties in with some of Joe's comments on stereotyping is I think a lot of times people really do believe they select the best person, and that goes back to this issue of but is their view of the best somehow playing out inherent biases, ‑‑
CHAIR DOMINGUEZ: Right.
MR. FOREMAN: ‑‑ that they don't even know that they're exercising when they’re doing it, and how you ferret that out is an incredibly difficult issue, and I know the Vice Chair and I have talked about that in the context of I think the book, Blank, where you're dealing with these slices and you make split-second decisions based upon information. And it's an incredibly difficult issue, but I think that's the level we need to get to to address it.
CHAIR DOMINGUEZ: Just having the Uniform Guidelines on Employee Selection Procedures out there is not sufficient.
MR. FOREMAN: That's right.
CHAIR DOMINGUEZ: We have to make sure that there's accountability.
And the final point on that testing, oftentimes the testing goes beyond the qualifications and experience; it's also they overlay corporate values.
MR. FOREMAN: Absolutely.
CHAIR DOMINGUEZ: So when you do the personality, they say okay, this person is qualified, but do they buy into our corporate values? And most of those tests are proprietary tests, so you can't really do any type of validation or comparison to see.
So I think that's a whole new field that, really, if you're looking at the participation of women and professionals of color in those upper level ranks, that is I believe an approach that has operated to exclude many from full consideration.
Again, thank you both very, very much for your fine presentations. We look forward to continuing our dialogue. This is not the end. This is really the beginning of many efforts together.
But I do think that having this meeting on the heels of the Systemic Task Force, issuing the Manual Chapter, and then hearing your feedback and your reactions just bodes well for the Commission. I think it really has affirmed and fortified our approach to rooting out discrimination.
So thank you very much.
MR. SELLERS: Thank you.
MR. FOREMAN: Thank you for your work. Appreciate it.
CHAIR DOMINGUEZ: There being no further business, do I hear a motion to adjourn?
VICE CHAIR: So moved.
CHAIR DOMINGUEZ: Is there a second?
COMMISSIONER SILVERMAN: Second.
CHAIR DOMINGUEZ: Any discussion?
CHAIR DOMINGUEZ: All in favor, please say aye.
(Whereupon, there was a chorus of "Ayes.")
CHAIR DOMINGUEZ: Opposed?
CHAIR DOMINGUEZ: The ayes have it, and the motion is carried. And the meeting is adjourned.
(Whereupon, the foregoing matter was concluded at 1:10 p.m.)
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