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A P P E A R A N C E S

Commission Members present:
Chair Jenny R. Yang;
Commissioner Constance S. Barker;
Commissioner Chai R. Feldblum;
Commissioner Victoria A. Lipnic;
Commissioner Charlotte A. Burrows.

C O N T E N T S

Dr. William Spriggs
Barbara Arnwine
Victoria Mesa-Estrada
Dr. Kathleen Lundquist
Robert Weisberg
Iliana Castillo-Frick
Donald Livingston

P R O C E E D I N G S

CHAIR YANG: Good morning everyone. The Meeting will now come to order. Thank you all for being here. In accordance with the Sunshine Act, today's meeting is open to public observation of the Commission's deliberations and voting.

First, I would like to invite Malcolm Medley, our Director of the EEOC's Miami District Office, to come up and say a few words to welcome us all here.

(Applause.)

MR. MEDLEY: Good morning, everyone. Chair Yang, Commissioner Barker, Commissioner Feldblum, Commissioner Lipnic, Commissioner Burrows, and to all the other EEOC senior staff. I'm Malcolm Medley. I'm the District Director for this Miami District. And as you know, the Miami District includes all but a few counties in the state of Florida. It also includes the Commonwealth of Puerto Rico and the United States Virgin Islands. So, on behalf of the staff, all the Miami District, our state and local partners, and all our stakeholders, it is my pleasure to welcome you to Miami.

I'd also like to welcome today's panelists and speakers, fellow federal managers, members of the Bar, and members of the public. I'm also pleased that some of our EEOC Miami staff members are present for this very significant meeting. Your meeting, Chair and Commissioners, is not only significant because this is an opportunity for a formal EEOC meeting to occur here, and that has not happened in some time that it has happened outside of Washington, but today's meeting is significant because by coming here, this Commission brings the formal work of the EEOC to the cities and to the people that it serves. Indeed, many of today's speakers may not have otherwise had an opportunity to address this body.

Your meeting today here is a symbol of the Commission's commitment to engage in the collaborative working relationship with members of the business community, advocates, state and local governments, and fellow government agencies. Your meeting today is also significant because of its topic and the theme. Our examination of the EEOC after 50 years and how we confront racial and ethnic discrimination in today's workplace is a critical conversation for us to have at this time. As someone who's spent 25 years in the civil rights arena as an attorney on both sides, in corporate positions, as a state civil rights commissioner, as a professor, and now EEOC Director, I've studied the history of civil rights, I've taught the theories of civil rights, and I have developed policies related to civil rights. Most importantly, I've lived the reality of civil rights issues. I've also been a witness to the advancements and the improvements that have been made. I have seen the progress and impact that 50 years of EEOC work has had in providing equal employment opportunities for so many. I, like you, have seen the emerging issues, the rapidly changing case law, and our evolving enforcement efforts. Yes, times are changing and even as we continue to address even the most blatant acts of discrimination that continue to occur, we must be mindful of the more subtle acts and the emerging areas.

I am very pleased that this Commission continues to keep in sight the victims who turn to us and the parties who are respondents who await our determinations. I am truly proud to be part of an organization that serves everyone. And so, as we celebrate and commemorate 50 years of EEOC, I join you, Madam Chair and Commissioners, in inviting everyone not just to celebrate but to join us in making the workplace fair and equal for all employees. Thank you and welcome.

(Applause.)

CHAIR YANG: Thank you so much, Malcolm.

At this time, I'd like to ask Bernadette Wilson to announce any notation votes that have taken place since the last Commission meeting. MS. WILSON: Good morning, and before I begin, is there anyone in need of sign language interpreter services?

(No response.)

Okay, thank you. Madam Chair, Commissioners, Deputy General Counsel, Assistant Legal Counsel, I'm Bernadette Wilson from the Executive Secretariat. We'd like to remind our audience that questions and comments from the audience are not permitted during the meeting and we ask that you carry on any conversations outside the meeting room, departing and re-entering as quietly as possible. Also, please take this opportunity to turn your cell phones off or to vibrate mode.

I would also like to remind the audience that in case of emergency, there are exit doors to your right and to your left. Additionally, the bathrooms are located outside the right exit door and to your left.

During the period January 10, 2015, through April 13, 2015, the Commission acted on 13 items by notation vote:

Approved Amicus Participation in Seven (7) Cases;

Approved a Federal Sector Decision;

Approved a Subpoena Determination;

Approved a Memorandum of Understanding between EEOC and Department of Justice, Civil Rights Division;

Approved a Task Order for e-gov Travel Services;

Approved the Spring 2015 Regulatory Agenda; and,

Approved a Notice of Proposed Rulemaking to Amend the ADA Regulation at 29 CFR Section 1630.14 (d) as They Relate to Employer Wellness Programs.

Madam Chair?

CHAIR YANG: Thank you Ms. Wilson, and thank you to all of you for joining us today. This meeting is EEOC at 50, Confronting Racial and Ethnic Discrimination in the 21st Century Workplace. We are so glad to be in Miami for this Commission meeting. Although we frequently conduct outreach out in the community, this is the first public meeting outside of Washington, D.C., in over a decade. We see this as an important opportunity for us to hear directly from the community. And this is a particularly important year for us as an Agency. We are celebrating our 50th anniversary of our Agency this July 2nd. That's a year to the day after the Civil Rights Act was signed. And this anniversary offers us the opportunity to engage all who care about promoting equal opportunity in the workforce. It gives us a chance to take stock of where we are and to think about where we're going and to identify the barriers that continue to exist in our workplaces and to think about the concrete steps we can all take to find solutions to those barriers and widen opportunities for all.

Like many parts of the United States, Florida has seen phenomenal growth. It has a more and more diverse population, and an increasingly multi-ethnic and diverse population. It gives us a fitting and unique lens, in many respects, to examine race, color, and ethnicity discrimination as well as their intersection. Although there has been considerable progress through the years in many areas, we all know that significant challenges still remain. We see the persistence of racial and ethnic discrimination in both overt and more subtle forms in workplaces across America.

I'll share with you some statistics. This past fiscal year the EEOC received 7,528 charges of discrimination in Florida, the second most of any state. Race discrimination continues to be the most frequently alleged basis under Title VII comprising 29 percent of all charges filed in Florida. National origin discrimination was alleged in 18 percent of charges filed in Florida, which is almost double the rate nationally where it is alleged in 10.8 percent of all charges.

We know that it's vitally important for us, as an Agency, to examine how racial and ethnic discrimination endures in today's work environment and how our workplaces are changing. So, as an Agency, we can adapt our enforcement and outreach efforts. Managing an increasingly diverse multi- lingual, multi-ethnic workforce raises challenges for employers. We would like to hear about barriers that remain in hiring, pay, retention, and advancement for racial and ethnic individuals, as well as new issues that are emerging. We are interested in the steps that are being taken to confront these barriers and recommendations for solutions to prevent discrimination, as well as best practices that employers find working. We are interested in hearing from you about what the EEOC can do better to serve both workers and employers in order to enhance our effectiveness as an Agency.

I want to thank each of our witnesses for joining us today and for taking the time to prepare the written testimony. We are fortunate to have such a distinguished panel with us, and I have found your written testimony to be thoughtful and extremely informative. This testimony is available on our website and I look forward to hearing from you today.

I also would like to thank those who put this meeting together. Convening the meeting outside of Washington, D.C., required some additional logistical work, and I'd especially like to recognize those efforts. I'd like to thank Miami-Dade College and Amanda Munoz for allowing the Commission to hold the meeting in this wonderful facility. And I would like to take a moment to also acknowledge Congresswoman Frederica Wilson, the ranking member of the EEOC's Oversight Subcommittee in the House of Representatives, the Education and Workforce Subcommittee of Workforce Protections. I know that Congresswoman Wilson has dedicated her life in pursuit of equal opportunity for all and devoted herself to solving the important issues we are here to discuss today. I should clarify, she is the ranking minority member. And we understand that unfortunately, she was not able to be here today, but I did have the chance to meet with her in Washington, D.C., and I wanted to thank her for her continued support of the EEOC.

I'd also like to acknowledge and thank our staff from our Miami District Office who have been so helpful. You heard from Malcolm Medley earlier. We also have Robert Weisberg, our Regional Attorney who you'll hear from today, Michael Bethea and Elaine McArthur who have also been hard at work pulling this together. And I'd also like to thank Cathy Ventrell-Monsees and Tim Riera from my staff; and Lexer Quamie of Commissioner Burrows's staff; also Brett Brenner, Kimberly Smith-Brown, Christine Nazer, and Justine Lisser from our Office of Communications and Legislative Affairs; Kristin Hartwell from our Office of Information and Technology; and Bernadette Wilson from the Office of the Executive Secretariat for the extra effort that went into pulling this meeting together.

I would now like to invite my fellow Commissioners to make any opening statements. And we'll start with Commissioner Barker.

COMMISSIONER BARKER: Thank you. I'm not used to these microphones, so you all tell me if you can hear me. Jim, thanks.

(Laughter.)

It's such a pleasure to be here today, and I think it's particularly appropriate that on our 50th anniversary that the Chair has chosen this particular topic and this particular location. You know, we have made great strides in the last 50 years, but the work of the Commission is not done, and it never will be done as new issues emerge and as some issues continue and may always continue to present problems in the whole arena of discrimination. So, it's particularly appropriate, I think, that we focus on race and ethnic discrimination, because those are two giant issues for the EEOC, two giant challenges that continue to be in front of us, so I'm particularly pleased that we're here in Miami to address this topic, because ethnic discrimination is a particular concern of mine, race discrimination, of course. But there are so many emerging issues in ethnic discrimination that it's important that the Commission really focus our attention and our assets on. And particularly as our demographics in the United States continue to change so dramatically. And the demographics that are predicted in 10 years, 20 years, and 50 years are so -- present such amazing challenges for us, particularly with the growth of Latino community, but also other ethnic communities. So, we're going to be a different United States in five years, 10 years, and 20 years, so it's really important that we get ahead of those issues.

A particular concern of mine has always been the treatment of migrant farm worker women and the fact that still in this day and time, there are numerous occasions where they are subjected to sexual abuse, sexual extortion. And Florida, unfortunately, because of the location of a number of the large farms here and employment of a lot of Latino migrant farm worker women is a case where we have seen those issues. And what makes that issue particularly difficult for us as a Commission is the reluctance of these women to come forward, and the difficulty for us to reach out to them, find them, and give them the assurance that we, as a Commission are there for them and we can do things for them that the Justice Department frankly cannot do. So, particularly important that we're here today and we examine these issues. And I appreciate all of you for coming and look forward to hearing what the panelists can give us. Thank you.

CHAIR YANG: Now, let's hear from Commissioner Feldblum.

COMMISSIONER FELDBLUM: Thank you. Thank you Chair Yang, for taking us on the road for this hearing. In the early years of our Agency, as Don Livingston actually detailed in his written testimony, the EEOC often held local community forums to make it clear that the EEOC was here and ready to do its work. So I agree that in this year of the 50th anniversary of the EEOC, it is good that we are holding a forum here in Miami, Florida, to talk about one of the most persistent issues, which is racial and ethnic discrimination in the workplace.

Now, no one doubts that our country has come a long way since 1964. You heard that from Malcolm Medley. You'll hear that from our witnesses and that is worth celebrating and recognizing. But as you will also hear from the testimony, and as our own Regional Attorney here, Bob Weisberg, and Barbara Arnwine in her testimony in particular, highlights these forms of discrimination continue to persist in our workplaces often in quite extreme and virulent forms. So that means the work of the EEOC is not done.

Now, almost every piece of written testimony we received also had specific recommendations for what more the EEOC can do. I was very happy to see those recommendations. Now that's not to say that we're going to be able to do everything that the witnesses have called upon us to do, but I believe that the only way we can do our job better is if we invite and we hear and we take seriously these types of recommendations.

So, let me conclude my opening by noting that I am very pleased that the EEOC adopted a Strategic Enforcement Plan for 2012 to 2016. A number of the witnesses highlighted in their testimony how important it was for the Agency to adopt a plan designed to deploy our limited resources in a targeted and strategic manner. And whether it is suggestions for additional research, which both Dr. Spriggs and Dr. Lundquist noted in their testimony, or a call for us to move in a more timely fashion on our charges, which Ms. Mesa- Estrada called for in her testimony, or a call for the EEOC to engage with employers in a proactive manner in their diversity initiatives that are beyond simple compliance, which both Ms. Castillo- Frick and Mr. Livingston called for. Any of those elements, any of those suggestions, are pieces that we addressed in our Strategic Enforcement Plan. So, the issue now is to continue implementing that plan in a rigorous manner.

So, I look forward to our witnesses today providing us with additional information and motivation to further implement our Enforcement Plan in a manner that truly confronts, combats, and, oh, if only, eradicates racial and ethnic discrimination in our workplaces. Thank you

Chair Yang.

CHAIR YANG: Thank you.

Now Commissioner Lipnic.

COMMISSIONER LIPNIC: Thank you Madam Chair. Good morning everyone. I want to thank the Chair, as my colleagues have done, for the great idea to move our Commission meeting to Miami. I'm not sure why we're not on a beachfront somewhere having this meeting.

(Laughter.)

That'll be the next one. In all seriousness, I do want to thank Miami-Dade College for hosting us and for being such gracious hosts today. Welcome to all of our witnesses and thanks to all of you for all of the time and effort that you have put into your testimony to be here, and thank you for being here.

Today's topic is quite fitting. We just wrapped up a year of studying and understanding the history, and of course celebrating the 50th anniversary of the Civil Rights Act. We marveled at the resolve and power of the civil rights movement, which like all great social movements brought about real change by creating a bond among people to attain a higher purpose, equality of opportunity in employment. We recognize the political courage and will it took to push over the top a truly transformative law. And we acknowledge the efforts of the individuals who breathed life into the law and took the necessary steps to start making the movement and the Act a reality. And this year, we will be doing the same, studying, understanding, and celebrating the 25th anniversary of the Americans with Disabilities Act. My friend, Commissioner Feldblum, and I were just saying at breakfast we can't quite believe it's been 25 years already since the ADA, and for the 50th anniversary of the Commission itself.

Amidst all that looking back today, we appropriately, I think, take the time to do some looking forward. And this is an understatement alert, but the America of 2015 is not the America of 1964. And similarly, I dare say, the America of 2065 will not be the America of today. I've said this many times in many speeches I've given over the past year and really in my tenure at the EEOC, that 50 years later, we are not an Agency going out of business. There is plenty of good old- fashioned discrimination to go around. I don't mean that lightly, of course, but I do believe it's an unfortunate truth that will drive the core of the Commission's work. But beyond that, what issues in equal employment opportunity, in particular for us, can we reasonably predict will confront the nation and the Commission as we bound into the 21st century.

I want to highlight two bigger picture issues that I think we should keep at the forefront of our minds. First, as some of my colleagues have alluded to, we should consider who will be the America and who will be the American workforce of the future. Like Dr. Spriggs, I share his background as an Assistant Secretary of Labor, and perhaps the most important thing that I would want to point out is a recent book and findings from Bill Frey, who's with the Brookings Institution, in his book about the diversity explosion. Sometime around the middle of the century, there will be no racial majority. We will be a majority-minority nation. What does this mean for equal employment opportunity? I've said this many times over the last year in particular reflecting on the Civil Rights Act, that the remarkable thing about the law is that it both met the moment and it foretold the future. For example, when it included sex as a protected basis in the law, that helped transform the workplace in ways that the law's crafters probably never intended. But the Act was also very much a response to a particular movement and time in an overwhelmingly binary then black and white nation. The America of the future will not be that. And so, on one level, how will the law be called on in the next 50-100 years to address the issues of the day?

Another issue worth considering, this change, especially the day-to-day existence during the racial transformation, will not come without challenges. I don't want to presuppose that the workplace of the next 50 years will be filled with cultural strife, but it's certainly an issue that we must keep our eye on. For example, as Mr. Frey highlights in his book, the shift to majority-minority will also be largely generational, as the aging white population is replaced by the diversity of today's youth. The shift may be felt more in certain geographic locations as populations move en masse to new places or expand at higher rates than other groups where they currently are.

America's workplaces are always microcosms of society and will be right in the middle of this. If tensions change and are playing out in society at large or in particular communities, we should expect them to similarly manifest themselves in the workplace. And so, I ask again, how will the law be called upon?

We should also be considering the future of work, and at the center of this, of course, are the technological developments we will see in coming years and their infusion into the workplace. Hardly a day goes by that you can't read an article about how technology is changing work, the workforce, and workplaces as we know them. For example, earlier this year, The Economist featured an article discussing the effects of pairing an increasingly rootless and flexible workforce with the power of technology like the Smartphone. The article focused on how more and more entrepreneurs and freelance style workers are coming together to cater to a growing on-demand economy in which customers are increasingly used to products and services being delivered nearly instantaneously via a Smartphone app. Think Uber, for example.

As we learned at our hearing on social media last year, a lot of these issues with technology in the workplace are ones we've seen before. They may just be dressed up in different clothing. But in terms of how technology will shape the workplace and the workforce, writ large, we probably have not seen anything yet. And I ask, again, how will the law be called upon?

So, with this background of who the workforce will be and all of the forces that will shape it, I welcome the testimony of our witnesses. I look forward to your thoughts and expertise. And, Madam Chair, I yield back my time.

CHAIR YANG: Thank you.

Commissioner Burrows.

COMMISSIONER BURROWS: Good morning. Bienvenidos. I'd like to join my colleagues in welcoming our distinguished guests and witnesses, and I'm very pleased that the Commission will be focusing today on the critical issue of how to most effectively combat employment discrimination based on race, national origin, and color. To be as effective as possible, the Equal Employment Opportunity Commission must understand the ways in which the American society and workforce are changing, including their diversity. I fully agree with Commission Lipnic on that.

This was a diverse nation even before the arrival of Europeans or Africans, because the Native American tribes had vast and different cultural, linguistic, and religious practices. But that diversity has only increased and today it includes persons descended from pretty much every part of the globe. As the chair noted, Miami is the perfect location to talk about that diversity, because it provides a window into the future when demographers tell us, as Commissioner Lipnic noted, the population changes that are already being seen in Miami will be reflected in the rest of the nation. In many ways, our country has had a history that's a march of progress, sometime more deliberate than speedy towards realizing the goals of justice and equal opportunity. In the last half century since the EEOC was established, it's had a vital role in continuing that progress. Our work in enforcing the civil rights laws that protect against job discrimination has opened new doors of opportunity, helped make this a country that's stronger, better, and fairer. And addressing discrimination on the basis of race has been a key part of that work. Indeed, it was African American resistance to racial discrimination that laid the foundation for passage of the Civil Rights Act of 1964 and the establishment of the EEOC itself. Fortunately, we've made a great deal of improvements since opening our doors in 1965, the same year almost exactly to this day in which Dr. King said that discrimination had limited African Americans to semi-skilled and unskilled labor causing them -- many to see life as a long and desolate corridor with no exit sign.

But there's still a great deal left to do to fully eliminate employment discrimination. So, I, too, look forward to hearing from our distinguished witnesses about the challenges in this area and the lessons we can draw from their experiences. I'm particularly grateful, because I know at least two of our witnesses need to catch a plane early, so I anticipate that Dr. Spriggs and Barbara Arnwine will be leaving a little bit early. So, with that, I will conclude. I commend the chair for holding this hearing to shed light on these important issues and I yield back my time.

CHAIR YANG: Thank you.

Commissioners, we are now pleased to hear from our distinguished panel of witnesses and we will start with Dr. William Spriggs, the Chief Economist at the AFL-CIO.

DR. SPRIGGS: Thank you very much, Chair Yang, and to the Commissioners. So, I want to congratulate you for continuing the legacy of the EEOC and in celebrating 50 years of making a difference in terms of discrimination in the workplace.

I want to, of course, start with the historical setting that Commissioner Burrows just mentioned. The 50 year anniversary is because of the vision or A. Philip Randolph, who was a labor leader. Randolph was very instrumental during World War II in getting President Roosevelt to put in place an executive order and create the Fair Employment Practices Commission, which was designed to ease discrimination in the defense industry during the World War II effort. That wasn't the first time. During World War I, President Wilson had a Division of Negro Economics at the Department of Labor that was trying to do something similar to actually combat abuses of African American workers in the South during the World War I war effort.

The accomplishments of the Fair Employment Practices Commission were quite marked, because it got African Americans into the defense industry, particularly in the North. It had no success in the South, and out of political compromise, agreed that it would leave it alone. So, it really was the lesson of the Fair Employment Practices Commission that something could be done, that it could be meaningful if we could end discrimination in employment. And that was the demand that actually caused the March on Washington, because A. Philip Randolph saw that his vision hadn't been made permanent. He had threatened a march on Washington during World War II, and now he decided, we're going to do the march, because President Kennedy's original Civil Rights Act did not include a provision on discrimination in the workplace. In fact, strategically, the marchers had to confront what would they ask for that would really be different than previous civil rights acts. And the debate was do we want voting rights or do we want the right to a job? And as you can tell, the march was called the March for Jobs and Freedom. They opted for the demand that there had to be an end to discrimination in employment.

And so, that's the impetus behind this Commission, and immediately, you can see the effect of the Act, because for the first time in the South, discrimination in manufacturing came to an end, and in large part in the textile industry and the tobacco industry, where African Americans for the first time were given meaningful jobs in those industries. And when you look at the progress of African American pay, you see the effect of the Fair Employment Practices Commission during World War II, because there's a bump-up in earnings for African Americans, because in the North, they finally got access to manufacturing jobs, and then in the aftermath of the Civil Rights Act and the implementation and effectiveness of the EEOC at its beginning. You see that African Americans got meaningful access to jobs in the South. And in the South, that's where you see the rapid rise in black income. It had already stalled in the North.

Now, here's the challenge. The challenge is that after 1975-1978, progress for similarly educated African Americans and whites stopped. The progress that African Americans have made since the 1980s has all been because of the relative increase in the education of African Americans relative to whites. Otherwise, the pay gaps between equally educated blacks and whites remains. The unemployment rate never changed. It was always two to one. It was two to one when the Act -- before the Act started. If you look at unemployment records from the 1960s, it's two to one. It's two to one afterwards. So, the challenge is that the easy job was done, but the job remains.

And I want to talk really quickly in my last 12 seconds -- (Laughter.) -- because the advance and the improvements and audit studies in employment have made a technology available, I think, to the EEOC that will allow you to benchmark and give us the background noise of what's going on in the actual workplace. These studies come up with astounding results, very disturbing and astounding results. We have examples where when you look at the qualifications of African Americans who submit for jobs, that those qualifications don't change their probability of finding a job at all. Better resumes don't mean that you get a job callback. Now, we see with white resumes that, yes, better resumes, better qualified workers, you get a better response on the job. And this is what is reflected in the data that we're seeing, the stall in the employment of African Americans.

And quickly, I would hope that you would do it so that you can find out, are you really making a difference? Are you really moving the ball? If you have this marker, it will give us a clear indication and give you an indication of what to look for. What are the particular forms of discrimination that matter? And again, in conclusion, I would say, while I've talked about disparate impact issues of -- over incarceration, of use of credit scores, of current employment status, what these audit studies seem to point out is those are probably all ruses. They are disparate impact markers because the employer feels that they'll have cover. They'll know that if I don't hire somebody, they'll assume it was because of one of those markers. And when we do the studies, we often find out, they weren't paying attention to those anyway. This was just their cover.

CHAIR YANG: Well, thank you very much, Dr. Spriggs. We look forward to having a chance to ask you questions before you all have to leave, so I just want to remind everyone, if you can try to keep your eye on the lights here, and they'll have a green, yellow, red, and when it hits red, if you could wrap up, that will ensure we stay on track and can catch some questions -- fit some questions in before you leave.

So, now it's my pleasure to introduce Barbara Arnwine, who's been President and Executive Director of the National Lawyers' Committee for Civil Rights Under the Law for 35 years, and just recently announced her --

MS. ARNWINE: Thirty-six.

CHAIR YANG: Oh, 36? Okay.

(Laughter.)

MS. ARNWINE: No, 26 at the national and seven at the local.

CHAIR YANG: Twenty-six and seven at local, okay. Thank you for that clarification. But she has just recently announced her retirement, well deserved.

MS. ARNWINE: Not retirement, but I'm leaving the Lawyers' Committee.

CHAIR YANG: Okay, so not retirement, but her next phase. And we certainly appreciate your joining us for this important discussion.

MS. ARNWINE: Well, thank you so much, Chairman Yang, and thanks to all the Commissioners for this great hearing and for this celebration of the 50th year of the Equal Employment Opportunity Commission, an organization I talk about all the time. And everyone knows, the Lawyers' Committee just celebrated our 50th anniversary two years ago. So, we have a lot in common as we fought to advance our society's racial equality.

I also want to say that in thinking about this whole problem, Dr. Spriggs has talked about this rate of unemployment of blacks and whites and double, you know, how it's stayed double now for decades, and the different underlying factors for that. The sad fact is that explicit discrimination that exists for decades with state statutes and union rules expressly excluded African Americans from many opportunities, has been supplemented by a new and enhanced set of barriers to employment for African Americans and other disadvantaged groups. These added barriers range from a simple double standard in the minds of hiring managers, the new focus on implicit bias, the unconscious bias that results in African Americans and others being excluded from equal opportunity to new examples of explicit criteria, like criminal background checks, credit background checks, unemployment bias, and entry level tests of various abilities, many of which have a devastating impact to deprive African Americans of equal opportunity to obtain jobs and advance in their careers.

Furthermore, an area that we really want to call to the Commission's attention is that these barriers are compounded when you add gender bias. The intersectionality of race and gender is a growing problem and it's one that really requires further guidance and further expression and deliberation by this Commission. We have all seen these matched pair studies where, you know, a white candidate with a felony record is interviewed before anybody will even talk to an African American applicant with a completely clean criminal background.

Similar studies show that when resumes are carefully matched in all respects except for names, the applicants with names common in the white community, Ashley or Jennifer, get far more invitations to interview than applicants with names such as Tameka or Latasha, names commonly given to children in African American families. But we also see in our census case that the Lawyers' Committee has been litigating now for a couple of years. We also see how criminal background records really have horrible effects. In a case that in this case, evidence revealed that between 850,000 to one million applicants who had FBI arrest records were diverted into a separate screening process where fewer than one percent were hired. Of those diverted, nearly 40 percent of the applicants were African American, even though about 20 percent of all African Americans were in the pool -- were all applicants. Statistical analysis confirmed that these percentages discriminate -- demonstrate a disparate impact not only on African Americans but also on Latino applicants. And as I spoke of in my testimony, you can see that right now, we have a class certified of over -- about 600,000 people in that case. And what's tragic about the case is that it is, probably, at this moment, the largest racial class action in the country. But, it does speak to this problem. I've mentioned this issue of intersectionality. Professor Kim Crenshaw, Kimberly Crenshaw, has done a great job of trying to have us look at it.

I recall that in 1995, I did a conference on African American Women in the Law and this was the focus of it. And here we are 20 years later and we still have not really made progress from the Graff and Reed and all the other cases where, you know, if you're black, you're treated differently as a black woman than black men. If you're a black woman, you're also treated differently than white women, and that the particularization of your discrimination is not being addressed. And we also know these are the same issues for Latinas and the same issues for Asian women and Native American women. And we really think that this is one area where the EEOC really should be looking at, given our current state of the law, given all these problems of addressing multiple factors, we really think that this is an area calling for absolute guidance.

So, in conclusion, you continue to play a critical role in our country's quest for equality. We can't get there without active intervention strategies, and we call upon you to continue to do the great work that you're doing and to look to our sector, that is the civil rights community, as allies, as experts, and as people who are willing to help in making sure that we, together, can really build a society that we deserve. Thank you.

CHAIR YANG: Thank you so much, Ms. Arnwine.

Now we'll hear from Victoria Mesa- Estrada, a partner in the Palm Beach County firm of Mesa and Coe. Thank you so much for joining us.

MS. MESA-ESTRADA: Good morning, Commissioner Yang and all of the Commissioners, the Regional Counsel. Thank you very much for this opportunity to speak today on this important issue. For me, this is a very personal topic, not only because I'm an immigrant myself, I am a woman, but I also, I mean, I'm Latina. And I'm so grateful for really having the opportunity to address you in this place, in Miami. I mean, this is the perfect place to have this conversation. We are in this tri-county area, you know, it's a potpourri of cultures, of social values, of different religions. I mean, you can find everything here. So, it will take me an entire week, at least, to really address everything that I want to say and that I'd share in my testimony. But I really wanted to focus today just on the three main points that really are important that I bring from the field as an attorney, as an organizer for many years with the Latino community and as an immigrant myself.

So, first, I would like to address the issues related to agricultural workers and the barriers that they face with discrimination. I mean, as you know, it's no secret that the Hispanic workers are the majority of the workforce in agriculture. We also know that the majority of them either are undocumented, or because migration patterns have really changed, and companies now -- employers are having the preference of hiring guest workers, we also have that mix of undocumented workers and guest workers in agriculture. And that has really opened the Pandora box on discrimination issues.

Let me start by -- indigenous workers, for example. I mean, there's been a transition where indigenous agricultural workers are now the domestic agricultural workforce. And you can't imagine the problems that they face. Not only they do not -- they're unable to communicate in English, but they don't speak proper Spanish, which is usually the -- is the most typical language that is spoken in the field, because the crew leaders in general tend to speak Spanish. But they speak indigenous dialects. And that has really made it very difficult for them, because not only they can't really communicate with their employers, but they have been the victims and really the targets of discrimination among their co-workers, whether it's the supervisor, whether it's the actual employer, farmer himself. It has created tremendous obstacles for them.

Then you can add the layer of gender. And this is where we really have seen an increase of cases of discrimination on female indigenous farm workers who are out there and are really the victims of this rampant sexual abuse, retaliation, constant hostility against them for many reasons. And it has really been very difficult for them to fight for their rights in their position as undocumented workers. It's very difficult for them to come forward, complain about being the victims of the sexual harassment, and because they have families, I mean, it has really come to that that they say, I need to preserve this job, because I need to feed my family and I'll just deal with it.

Fortunately, there's been great champions out there in the field. And one of the cases, for example, that the Miami District Office is currently litigating and that I represent the charging parties chose that. A situation where five women were working at a packing house and they were being constantly harassed by the employer, the farmer himself, who managed the packing house. They were also being harassed by the supervisor. And on top of that, they became victims of rape. And when they tried to fight back and tried stop these abuses, they were fired. It was direct retaliation for them for taking the step to fight for their rights. They went to law enforcement agencies. They complained about the rape. They complained about the sexual harassment that was really a class issue, because every woman at that packing house at some point or another had been the victim of this harassment. And regardless of whatever they did, it just kept happening.

Fortunately, there was the one unrestricted legal services organization here in Florida that could assist them. I used to work for that organization, Florida Legal Services, the Migrant Farmworker Justice Project. And I say "fortunately," and now it's an unfortunate thing, because legal service organizations, I mean, they're really in straights of money and we are letting people go all the time. I was recently laid off from my position despite being the only attorney that was in the field working on sexual harassment issues. So, it tells you the challenges that are coming ahead, and this is why I shared that.

But in the case that I chaired for Moreno Farms, the victims were put in touch with us, with our Agency. We were able to file the charges, try to move the ball forward. Fortunately, the district director in the Miami office was able to, despite the limited resources he had, he was able to accommodate two of his investigators who spoke Spanish to come and interview my clients in a very short time. And that, for us, is quite commendable. The fact that the Miami office really moved fast in trying to address this issue with my clients. Unfortunately, then the process took forever. But we're here and we're moving forward. The regional attorney, fortunately, they're litigating the case on behalf of the clients and hopefully, we'll find a resolution that would really dictate and send a strong message to the agricultural community that this cannot be tolerated. And just because these are women, and because they have no papers, it doesn't mean that we're not going to act on that.

I wanted to touch very briefly on the guest worker problem.

CHAIR YANG: Unfortunately, we are out of time, but we will make sure to ask you some questions so you can have a chance to answer that. Thank you very much.

Now, we will hear from Dr. Kathleen Lundquist. She is the President and CEO of APT Metrics and an expert organizational psychologist. Thank you.

DR. LUNDQUIST: Thank you, Chair Yang, and Commissioners Barker, Feldblum, Lipnic, and Burrows. Good morning and thank you for the opportunity to share my perspective as an organizational psychologist, somebody who spends their time trying to match people to jobs and assess skills. One of the things that we have noticed in our work of late is that candidates are are increasingly being screened by online technology. Online applications, some of which when a candidate enters responses to some very initial questions in the application, may disqualify them from further consideration.

Biodata and personality measures, which are widely used and may be administered to thousands of candidates, again, which may screen them out without even being involved in any human contact. Responses to interview questions, which are increasingly being videotaped so that there's not even a person that is interviewing the candidate, but rather that's just a videotape that's being uploaded online and is used as a screening device, and even online background checks. Huge volumes of applicants are being screened this way. And as a result, employers have found this to be a very cost-effective manner of screening huge numbers of candidates. But the problem that we see is that there's very little validation evidence for many of the steps in this process. The criminal background checks are but one good example of where a selection procedure that has huge adverse impact also is not very often, if ever, subjected to any kind of validation evidence.

What I wanted to bring to your attention, however, is that despite all this technology and some of the concerns that may happen, there is a way to use this for the greater good. Increasingly, our research has shown that there are selection procedures which can be made in ways that simulate the job so that a candidate who is seeking to be employed can actually demonstrate in a much more realistic fashion what they would do and how they would perform on the job, things like managerial in-baskets, or even simulations of a fictitious manufacturing system for manufacturing workers all allow candidates to show their skill set in a way that enhances their acceptance that this is, in fact, a reasonable basis on which to be evaluated. And best of all, it's shown reduced adverse impact.

Over the past 50 years, researchers in our field have continued to identify ways to change what we measure, how we measure it, and how we use those results in attempts to reduce adverse impact. That kind of information then has helped us to design selection procedures that will minimize the amount of adverse impact against racial and ethnic minorities.

I'd like to share with you a little bit about what we measure. Much of this research has focused on cognitive abilities testing, because that's the research that has shown the largest differences between whites and African American or Latino candidates. But the research has also shown that cognitive abilities tests can be very effective in predicting who will be a successful performer on the job. What has been most interesting is recent research showing how to reduce or eliminate the amount of adverse impact associated with cognitive abilities tests. So, rather than throwing that out as a predictor, it's possible to use that predictor in ways that allow racial and ethnic minorities to show their skill sets at an equal level with white or majority candidates.

They interestingly predict such things as your ability to multi-task, your ability to stay focused despite distractions, all kinds of things that are increasingly becoming important in the workplace. In terms of non-cognitive skills, that's been another area of great interest, particularly personality, integrity, and emotional intelligence testing. Those tests show small to no racial and ethnic group differences. And we're seeing them used quite effectively to reduce adverse impact for racial and ethnic minorities. There are some potential challenges there, given the concerns about people who may have mental disabilities and certainly hope that's something that you will consider addressing.

How we measure has been important as well. That includes using these kinds of simulations that I talked about before the candidates are most interested in participating in. They feel engaged. They don't feel that the reading demands and the other kinds of demands of the test, as opposed to the demands of the job, are what will be the basis for their evaluation.

We've also found some very interesting opportunities to use structured interviews in new ways where we tape the responses, audiotape the responses to structured interview questions and ask one panel to rate the responses to Question 1, a different panel for Question 2, a different panel for Question 3.

In all of this, I guess what I think most importantly you should consider is that it's not the technique. It's not what you measure. But it's the interaction of those two things, much like the intersectionality that was talked about before, that is important when you look at a less adverse alternative.

And on a hopeful note, the kinds of things that we're finding are important to jobs today and the way we can measure them have great promise for reducing adverse impact going forward, so I encourage you to think about that. Thank you

.

CHAIR YANG: Thank you so much. It's now my pleasure to introduce Robert Weisberg, our Regional Attorney of the Miami District Office.

MR. WEISBERG: Good morning, and thank you, Chair and Commission, for inviting me to testify today. I think at the 50th anniversary of the Civil Rights Act, it really calls us to really ask to the extent to which race continues to be a factor or play a role in our society and in employment decisions. And I think that the answer to that question is an emphatic yes. And since I was asked to testify here, I didn't know exactly what I was going to say, but certain events that were reported in the South Florida news media really provide the framework for one of the things I really want to say and which I wrote about in my written remarks.

Three incidents that were reported in the last three months I think just sort of underscore how significant race continues to be in our society and in the workplace setting. And I just also want to point out that these incidents weren't -- I didn't spend hours on the Internet searching through obscure websites to find them. They were reported in the Miami Herald, the Sun Sentinel, on the local news media.

The first one, which was reported in late March of 2015, the Fort Lauderdale Police Department announced that they had fired three police officers and a fourth had resigned for writing vile, racist text messages filled with racial slurs and violent language including repeated references to killing Niggers. One of the officers also made a video filled with racial slurs. The local NAACP has asked the Department of Justice to investigate, but that was, again, widely reported locally.

A second incident involved the March 2015 firing of a Univision TV host for comparing Michelle Obama to an ape. And as reported by the Miami Herald, this scandal generated a significant debate about race among Latinos. And the Miami Herald quoted a professor at the University of Miami, Dr. Michelle Gonzalez Maldonado as saying, "In the U.S., the idea of race is very black and white, but the reality of race is much more complex in Latin American countries." And Dr. Maldonado further said that "This does not mean there is not racism. There is, but it's a type of hierarchy," which she described as "pigmentocracy." Now, this scandal also generated debate about diversity in the Spanish language media. And Mekahlo Medina, who's the President of the National Association of Hispanic Journalists stated, and this is a quote, that "Latino journalists should not ignore the blatant racism that exists in our communities and in our newsrooms." And questioned, "How many Afro- Latino anchors are seen in Latin and Spanish- language newscasts?"

A third incident that was reported widely the very beginning of April involved United States District Judge Marcia Cooke who is -- Judge Cooke is the first female African American appointed to a federal judgeship in Florida. Judge Cooke resides at Bay Harbor Islands in a condominium, which is about 12 miles from here, and as reported in the press, one morning, she was dressed for work in her professional attire, was on her way to her car to drive to work, and was approached by a candidate for local town counsel. This candidate approached Judge Cooke and asked her, "What family do you work for?" The candidate later said he regretted his remarks, but he assumed she was a housekeeper. I think this underscores then that race continues to be a factor in the South Florida community, and the South Florida community is not alone. In my written testimony, I've outlined some of the work we've done, and with the time constraint, I can't get into that, but I really want to sort of point out two recommendations that I feel real strongly about since I have the opportunity to speak to all five of you at the same time.

(Laughter.)

I don't think we can underscore how important the priority No. 1, the Strategic Enforcement Plan, is to do our job. That hiring -- barriers to hiring and recruitment, and I would add promotion, is an area that we are in a unique position to do. And I say this from my private practice experience. For 25 years, people would come in. They knew something happened, like they came in with a great resume and when they showed up and they realized they were black, everything didn't work out right, but they didn't know who was hired. They didn't know who made the decision. And I think that we should emphasize even more at the investigative level and when appropriate, litigation, to really ferret that out, since we have the tools to be able to find out what actually is going on with the private bar camp, coupled with the challenges of arbitration agreements, and the challenges of Rule 23. So, that's something I think ought to be even more of an emphasis than it is already. Thank you.

CHAIR YANG: Thank you so much, Bob.

We now welcome Iliana Castillo-Frick. We want to thank you again for hosting us here. She's the Vice-Provost for Human Resources from Miami-Dade College.

MS. CASTILLO-FRICK: Thank you, Chair Yang and distinguished Commissioners Barker, Burrows, Feldblum, and Lipnic. As the Vice- Provost for Miami-Dade College, I welcome you to Miami and to MDC.

MDC is a community college created with the idea that anyone with a desire to get a college degree should be given that opportunity. And currently, we are the largest institution of higher learning in the nation. In my capacity, I'm responsible for all functions of human resources college-wide including our efforts to build our diverse and inclusive workforce.

I appear before you today on behalf of the Society for Human Resource Management, SHRM, where I have been an active member since 1985. I have also been a board member of HR Florida and the Greater Miami SHRM, where I served as diversity advocate, community affairs director, and chapter president.

SHRM members are committed to promoting diversity and inclusion strategies in the workplace. And according to 2014 SHRM survey data, more than half of HR professionals say they're recruiting strategies are designed to help increase diversity in their organizations and implementing such initiatives. SHRM includes D&I as a key part of the HR body of competence and knowledge upon which our professional certification is based.

Today, I'd like to discuss with you the importance of addressing barriers to employment and advancement based on race, national origin, color, by focusing on my experience with diversity and inclusion initiatives and why I believe that D&I is a critical focus for employers beyond compliance with equal opportunity -- equal employment opportunity laws. I also identified some challenges that I have encountered and share some thoughts on how to address those challenges.

First, I wish to address the relationship between diversity and inclusion policies and practices on one hand, and the separate and distinct equal employment opportunity and affirmative action compliance on the other. The mixing of these issues relates back to historical evolution of these complementary yet distinct concepts. EEO laws focus on fairness and non-discrimination in employment decisions and most employers have written policies that address their organization's commitment. EEO and affirmative actions are primarily matters of legal compliance, although they do help to create a workplace that is more supportive of all people and more diverse. In fact, early diversity programs grew out of a company's EEO and affirmative action programs, while modern concepts of diversity, however, have evolved beyond compliance-driven efforts around non- discrimination and a narrow focus on protected classes, instead aimed at realizing competitive advantage in business opportunities. A well-designed D&I policy will align directly with the organization's key business objectives. Employers voluntarily establishing those policies for a variety of reasons, do it with a desire to attract the best talent to contribute to the organization and build a globally competitive work force. In my experience, voluntary diversity efforts are to be encouraged and fostered. And by fostering a culture of diversity and inclusion, organizations will attract and retain the highest level of talent.

Creating diversity and inclusive workplace is not without challenges. One internal challenge faced by organizations is changed management. And each organization has a maximum rate which it can process cultural change. This depends on the organization's cultural competence and the magnitude of the gap between the current situation and the diversity initiatives objectives. Change management for voluntary diversity programs may occur in phases.

While workplace diversity can yield benefits and innovation and group decision, it also requires understanding and respect of others. In simple terms, we like people from our own groups more than people from other groups. It's a fact. That's the way, unfortunately, people are. And this can lead to dysfunctional behavior such as instability and biased decision-making. Employees and managers, however, can disrupt that process and enable positive interpersonal dynamic in several ways.

I want to address one thing that I thought was important to you and that's unconscious bias or, as I've seen it also written, unconscious or the differences between such. Often skin color and gender and age are generally what people think of when they consider biases. And individuals can, however, unconscious prejudice about many characteristics. But it's important to know that sometimes it's not just that. It can be the way people see someone's height, weight, what school they went to, what school they didn't go, what sports they play, and even not as prejudicial, but some biases of the halo effect where that's perfect, that person is perfect. So, effective practices for addressing these are having a voluntary diverse program that is flexible. And I know that in my statement, I have some ideas of such that I wanted to share with you.

CHAIR YANG: Thank you, unfortunately, we are out of time, but we will move to some questions.

MS. CASTILLO-FRICK: So, I thank you.

CHAIR YANG: Thank you very much. And we will now hear from Donald Livingston, a partner at Akin Gump, and a former General Counsel of the EEOC. Thank you so much.

MR. LIVINGSTON: Thank you. Good morning, Chair Yang, Commissioner Barker, Commissioner Feldblum, Commissioner Lipnic, Commissioner Burrows. Mr. Lee, Mr. Schlageter, good morning to you also. Congratulations on the 50th anniversary of the EEOC, but now here we sit, 50 years later.

The removal of legal obstacles to equality of opportunity has not led to equal results for African Americans or Hispanics as groups. Plainly, we don't live in a highly charged racial period that typified the world of the EEOC's first Commissioners. Our businesses, especially those that compete on a national or international stage don't shun minorities. Many have built diversity into their business models understanding its necessity to compete in highly competitive markets -- and you just heard, I think, very good phrasing that diversity programs have moved beyond compliance with the law to encompass greater business objectives, which I will discuss in a second. But many of the obstacles that existed in 1965 persist. Yesterday's concerns about inferior education and segregated schools is today a problem with the decline in the quality of education in urban schools coupled with the decline in relatively low-skilled, traditional middle-class jobs. Higher level, better-paying jobs require higher education or specialized skills. Many Hispanics face the additional barrier of lack of English language fluency or legal status. These obstacles exist outside of the workplace, but impact workplace decisions. The solutions to them, if they exist, may be beyond employers' reach.

In my opinion, the following are characteristics of best corporate practices to create pathways to equal employment opportunity. First, the organizational leadership makes diversity a corporate priority, and I think that's some of what you just heard about moving beyond compliance. That priority is communicated to the organization by making a business case that explains how diversity enables the company to accomplish its strategic goals. The business case is based on the simple principle that the diversity of individuals and organizations creates an environment where innovation and ideas flourish. The corporation, for example, has to explain that diversity is required to attract and retain the best talent, create an environment that fosters innovation, promote differing viewpoints to enhance problem-solving and decision-making, and develop a positive reputation in its communities.

Second, a successful corporate program manages diversity. That means insisting on job- related practices, monitoring the practices for disparate impact, and utilizing alternative practices where disparate impact can be reduced or eliminated.

Third, a successful program includes informal or formal successorship planning and not just at the executive ranks, but at all levels throughout the company to identify persons who are able to be placed on pathways to advancement. One employer that I'm familiar with, even at the district level, at low-level jobs, creates on- the-bench reports where it identifies persons who were promotion ready with particular emphasis on making sure that diversity is recognized in those persons it would have on the bench. But there's work to be done.

In my observation, I want to say that the EEOC as a whole is a more competent organization than at any time in its history, with few exceptions. Moreover, the EEOC appears to proceed purposefully, pursuant to a managed strategic plan, and this is highly commendable. In the past, the Agency has seemed more charge- drive, and as a consequence, its practices seem less cohesive and its enforcement efforts less coordinated.

But, of course, I do have suggestions. Title VII has a conciliatory spirit calling for EEOC to cooperate with state and local agencies; conduct educational promotional activities; and seek confidential resolutions of cause findings through informal methods of conference, conciliation, and persuasion. Three former General Counsels and I made comments to the EEOC on how it might improve the quality of its investigations and conciliation. Two of the suggestions we made, I wish to highlight. One is, is that we believe that some field offices in pattern or practice cases where litigation is sought, push for a waiver of confidentiality in the conciliation agreements, which we think is inconsistent with the EEOC -- with Title VII, and second, that the field offices don't provide adequate information to the respondent in order to engage in effective conciliation.

CHAIR YANG: Thank you very much.

MR. LIVINGSTON: I refer you to my statement for my other suggestion.

(Laughter.)

CHAIR YANG: Thanks very much, Don.

And to all of our panelists today, I really thank you for your thoughtful testimony and I'd now like to invite my colleagues to make any comments they have or ask questions to the panelists. Each of the Commissioners will have seven minutes to ask questions, and then we will have a second round of questions that will also last seven minutes. And since I know that Dr. Spriggs and Ms. Arnwine need to leave about 11:00, I thought I might start with a question for you both.

Dr. Spriggs, I was interested in your testimony about the job segregation that continues to exist and that in many ways the progress has stalled since the '80s. I was interested in hearing more about why you think that is and what we can do, as an Agency, including to hear more about the audit studies that you were recommending.

DR. SPRIGGS: Thank you very much, and thank you for being mindful of my time, and I do apologize about that. And I think that Mr. Weisberg hit on it exactly. Many economists actually believe that litigation involving incumbent workers leads employers to want to respond to not hire out of the threat that if I bring in protected groups, then I will somewhere down the line face litigation. And it is at the hiring point, as Mr. Weisberg said, that workers are totally in the blind as to what has happened. And so, I think that the pattern of workplace segregation that you see many employers who are not diverse at all gives you an indication of the type of hiring discrimination that is out there. The use of audit studies, I think would be very helpful in giving you a background number, a way of judging how prevalent these barriers are and to understand at which point their discrimination may enter into the decision. So, whether you decide to accept having in-person auditors and then follow the process or whether you prefer to use resumes. And either event, I think you can follow the process and see where the discrimination is. Some of it appears very much early on in screening. Economists now know that there really was discrimination during this downturn against those who were long-term unemployed. One of the people who did the resume study sent out a resume. He was a graduate student, so he sent them out at one o'clock in the morning, because, of course, as a grad student he's got to do his work and then start his own research. He would send it out at 1:00 a.m. and at 1:05 -- this speaks to how they're screened, at 1:05, he got an email back, "No, we're not interested." So, it quickly shows you that this was -- they were instantly screened out of the process, not by a human, but by algorithm. And so, that kind of information, you can monitor how is the process working? At which point does somebody get an instant no? At which point do they get a callback? At which point after the callback? And this background, I think, would be very helpful.

CHAIR YANG: Thank you so much. Ms. Arnwine, you have done work throughout your career on the issue of intersectional discrimination.

MS. ARNWINE: Yes.

CHAIR YANG: I'm glad you raised that today, where we have both gender, race, ethnicity, and other issues. And you had suggested that additional guidance from the EEOC would be helpful. Can you talk some more about areas in which you think additional guidance and clarity could be helpful, as well as any other steps the Agency could take to more effectively address these issues?

MS. ARNWINE: Well, you know, yes, I think that people look at the issue of race and gender too simplistically. It's much more nuanced. And, you know, even within groups, the particularized discrimination that black women may experience is not identical to what Latinas may experience, or Asian women or Native American women, because we're all plagued by different stereotypes about our performance, who we are as people, our values, our everything. And people want to think either that all women are the same or there are white women and women of color, and all women of color are the same. It's just not true that the stereotypes of the BB, which I won't iterate regarding black women, is very distinctive from the stereotypes that people use to really -- as we were just hearing the testimony from Ms. Estrada to really plague women who are Latina. We may see some of the same exploitation. We may see some of the same detrimental effects, but we still -- but it's not identical. And when you read the cases, you're really struck by it, by how the different stereotypes really compel the different behaviors. Nevertheless, it all results in the same thing, subordination. And it all results in less pay. It all results in hostile work environments. It all results in the inability to be promoted appropriately. So, these are issues.

I actually want to mention one of the worst things I've ever seen in my career was that we actually did a focus group in Upstate New York, by the way, right outside of Westchester. And we were trying to see how white Americans were thinking about issues around affirmative action. And I'll never forget it to this -- it's probably going to go with me to my grave, is that a lady who was in one of the focus groups, not knowing who we were and who pulled all this together, when they were going around introducing themselves, she said, "My job is to tear up the black resumes." She just said it. "That's my job." And in a room of 25 people, you know, all white men and women, it was shocking to me that only three people said, "What are you talking about? Are you really serious?" And she said, "Yes." She said, "That's what I do." Which means, they never even get into any audit. Possibilities. And they asked her, "Well, how do you know that they're black?" She says, "Oh, that's easy. We know where people live, what high schools they went to. We look at the names. You know, it's very simple to tell. Sometimes you can even tell when they call by their voice." It was deep. And I just -- of course, all my colleagues are restraining me from going through the window.

(Laughter.)

But it was telling, because -- and I'm not talking about '60, '70, '80. I'm talking about discrimination, you know, very current. And it was very, very painful to watch, because it just gives us the reality of how really deep and embedded and evasive racial discrimination is in our country.

CHAIR YANG: Well, thank you for sharing that. That was very powerful. I am out of time, so I'd like to turn it over to Commissioner Barker. We still have the red light, so if you see it getting red, we need to, unfortunately, cut it off so we can have time for everyone to ask questions, thank you.

COMMISSIONER BARKER: Chair Yang, if you don't mind, can you move this so I can see the light?

(Laughter.)

Thank you all for your testimony. Every single one of you are really good testimony on very different aspects of discrimination that we all need to be aware of and have in the front of our minds. I'd like to focus my attention on Ms. Mesa- Estrada, because I know that you started to talk to us about the guest worker problem and ran out of time. So, I've got about five minutes left. Can you talk to us about the problem with guest workers?

MS. MESA-ESTRADA: Thank you very much for letting me address this issue. I mean, as you know from litigation that the EEOC has taken on the Global Horizons cases. Guest workers, I mean, they're here working in the country, but they come in a condition of -- they're very vulnerable to abuse. Their visas, if you're working under the H-2A program that is allowed by the Department of Labor, you don't have the portability provision to really -- if you don't like the work, just move on and find a new employer. Unfortunately, these workers do come with their hands tied. And you have to understand all the layers that are behind that. Most of them come with debt, because they have to assume all of these costs for travel for living the first weeks, because many of them just get here and it might happen that there here for two weeks with no work. So, I mean, they already come in that position. And when they're here, I mean, they really face a treatment that is very disfavorable compared to the other workers. They often find themselves in situations where they're actually being put to fight against other Latino workers, like, for example, we have a lot of Mexican agricultural workers. And they come with visas. They come to Florida, for example, to work in the citrus industry. That's an industry that has traditionally been worked by the undocumented workforce in Florida.

And now there is this fight between the guest workers and the indigenous farm workers that are here as domestic. And there's always that interaction between them. There's the issues of race. There's the issues of ethnicity. There's - - the biases related to accents, to color. And they face this constantly. So, the guest workers, in particular, they're really -- I mean, this is something that we have been pushing forever. Not only they're underpaid, not only are they victims of this hostile environment, because they basically cannot open their mouth because they're reminded constantly, if you complain, we're going to put you in the first bus back to Mexico, and that's how it's going to go. And it makes it really hard for them. And they're always thinking of that. Their family's behind in Mexico and this is a risk they're willing to take, but it shouldn't be that way, and that's something that we try to constantly remind people in the field when we do outreach to tell them the fact that you have this visa and that you're tied to this one employer does not mean that you don't have rights.

And if you were an undocumented worker, we will say exactly the same thing. You know, there's rights and you should be able to enforce them. You need to come forward. But, unfortunately, the biggest problem that we have, it's really the resources, that there's really no one out there really going to these communities providing, you know, the community outreach, the education so they know what to do. And this is something that we definitely hope that the EEOC can really improve and try to address more resources to really focus on those communities that are so vulnerable.

COMMISSIONER BARKER: Thank you. And you hit on something that I think is so important, and that is the importance of people going out in the fields like you and your organization did to reach people, because there are language and cultural differences, and because there is that, you know, I mean -- our job is to protect every person who works in the United States for an employer of 15 or more people, and in some occasions fewer, regardless of their citizen status. And that's a hard thing to communicate and -- to a level where the women, in particular, have confidence in our Agency that we won't -- we're not connected with Immigration. We're not going to turn them in. It's not our business to even know their status. It's our business to help them understand, exactly like you said, they do have rights that, you know, if they're employed, they have rights. And we can help them.

And a particular thing that I'd like to mention is, Chairman Yang and I were talking briefly before the meeting about this particular issue and the difficulty and what our Agency can do. And, you know, the Commissioners' charge, to me, is perfectly designed to help immigrant -- particularly immigrant women because we can do it -- we can initiate an investigation without revealing who the woman was who came forward. So, it's not like having to go to the DA's office, lodge a complaint, where as soon as you're name goes down in a complaint, you know, the employer knows who brought the complaint. We can offer a lot of privacy.

So, thank you for your work in this area and for bringing these issues to mind.

CHAIR YANG: Thank you.

Commissioner Feldblum.

COMMISSIONER FELDBLUM: Thank you. So, I want to come out this morning as a data geek. It seems to me that we need to know how much discrimination is out there partly to convey to the public the extent of discrimination and also to see whether we are actually moving the needle. So, I want to start with Dr. Spriggs, given your time constraints, but I don't want that to have an adverse impact on our other witnesses. So, if you would be conscious of the seven minutes. Do you think it is possible for the EEOC to measure the amount of discrimination that is out there? Also, keeping in mind that there is the intersectionality issue, so people don't always know why they were discriminated against, or if that's simply an impossible endeavor and therefore it will be difficult for us to know whether we have moved the needle?

DR. SPRIGGS: Well, I think what's clear is that it's very hard to enforce any law, and especially workplace law. I'm not sure whether we can say that we can measure discrimination, but we can certainly set the baseline so we understand that -- what is typical and what people are facing and we can understand the rate at which they are facing it. And then that, going forward, can give you a baseline to say are we targeting our enforcement efforts to try and weed out those things and get that level down? So, I think you can do that.

COMMISSIONER FELDBLUM: Others? I mean, in particular, I think I might move to Dr. Lundquist here because often, you can reduce the disparate impact of some screening tools based on race and ethnicity, but what you do then affects, perhaps, people with disabilities, including people with -- on the autism spectrum that then aren't able to get through those new approaches.

DR. LUNDQUIST: It's really a challenge, particularly on the biodata-type measures that we're talking about that are so pervasive and that happen very early on in the process. There are frequently questions that to a typical worker, say someone who is applying for a job as a customer service person, if the question is "Endorse this, yes or no. I wake up in the morning with a positive attitude." If a person is, in fact, manic depressive, that may not -- that answer may not come quite so easily. The question's not being asked in the context of work. It's being asked in a very general context. So, employers sort of now have to think about the tools that they used before that were predictive and say, "How do I keep that within the context of what I might actually ask somebody to do on the job?"

COMMISSIONER FELDBLUM: Right and that won't have, necessarily, a disparate impact based on race and ethnicity. So, I guess for the other folks, and maybe Ms. Estrada, in terms of if we did try not the way Dr. Spriggs said of the rate, sort of now, and whether that rate goes down, but overall how much discrimination exists in terms of people saying, I think I was discriminated against. Do you think that's possible, especially given the populations that you know the most about whether they would respond?

MS. MESA-ESTRADA: Well, I will say it's really impossible at this point. And I always think of this in the context of trials, for example. I mean, this whole inter-ethnic discrimination that we see every day. It doesn't come easy, for example, for a jury to understand that an Hispanic can discriminate against an Hispanic for being Hispanic. And you probably don't understand that statement either. I understand it, because I've been in that position. The fact that I'm South American might actually give me all these benefits, because I might be -- without even opening my mouth, there's already this notion that, oh, she probably speaks better Spanish than other people. Or, if I'm Cuban in Miami, that might already give me many points just by saying I'm Cuban, but when you start -- I mean, I can't always think of this in an interview as you start talking, and I've been in that place where the moment that I open my mouth, I'm already thinking my accent is horrible, I might not be the most proficient person to speak in English. The people who are interviewing me are non-South Americans or Cubans or Mexicans, and, I mean, I always have those biases in my head that I think are always going to play against me. So, I imagine, am I in the position of an Hispanic worker who is a low-wage worker, who might not have the best -- the highest levels of education, who is in a status of no documentation in the United States, who has all these biases and stereotypes related to, you know, being indigenous, not speaking Spanish as a first language, speaking a dialect that already it's very hard to understand. I mean, I just don't think it's really possible at this point. And until we address this inter-ethnic discrimination as a policy statement, and we really value, I mean, that there's this mix of issues that really interrelate. I don't think we're going to be able to come to that.

COMMISSIONER FELDBLUM: So, in terms of the three of you over here on this side -- I mean, Chair Yang knows I've been like a dog with a bone about getting our multi-year data and research plan out. And one of the suggestions, and it is to see if we can measure a baseline. So, again, I know you're not researchers, but any sort of instincts about whether that is something we should try to do?

MR. WEISBERG: It seems that progress could be measured, rather than trying to measure some absolute number at the end of the day or some other sort of quantifiable measurement. The extent to which -- and I sort of, you know, whether EEO one-type forms or other types of more aggressive auditing reports or data that's required of employers and maybe more detail. And then, maybe where there's red flags, to -- whether it's through Commissioner's charges or whatever it may be, but to approach that -- be more aggressive from looking at it at that vantage point.

When Mr. Livingston was talking and I think about sort of the progress --

COMMISSIONER FELDBLUM: Actually, I'm going to stop you because of the yellow light and just see whether the other two of you have any reactions? We'll continue.

MS. CASTILLO-FRICK: I agree with what Mr. Weisberg was saying that progress is the best way to measure, especially, I can see Ms. Estrada's story where it is so compelling and I personally believe it's so true. But then you're in a more dynamic city as Miami, and there may be other types of discrimination happening. So, progress is a more positive way of approaching. COMMISSIONER FELDBLUM: My time is up, so --

UNIDENTIFIED VOICE: -- (indiscernible) to his answers and get back around.

COMMISSIONER FELDBLUM: Yes, okay.

UNIDENTIFIED VOICE: Because I'd love to answer that one, to.

COMMISSIONER FELDBLUM: Well, maybe -- well, we'll let it --

COMMISSIONER LIPNIC: Yes, I will.

CHAIR YANG: We'll turn to Commissioner Lipnic to save the day. COMMISSIONER LIPNIC: So, I'm happy to give you a chance on my time to answer that, assuming I'll get some indulgence at the end of that.

MS. ARNWINE: Well, I just think that the biggest problem out there, and we see this with the credit check problem, which I didn't get to talk about, which we know is a huge problem. You know, I said, most people don't know why they're rejected. And they just assume it's them. There's something wrong with their background, something wrong with their match. And I think that what we really need is greater transparency in why people are rejected, because you go and you go to the kiosk now and you fill out the kiosk, you put in your app, and you get a letter saying you weren't hired, if you're lucky. You know, usually, you just don't hear back. And people have no idea why they were rejected, you know, what -- you know, the lady I was talking about before, she's probably an algorithm now, instead of -- but, you know, but these are real problems. And I think that one of the real -- because I live in a household with a lot of millennials, and I watch them job search. And I really am surprised at the lack of information as to why people aren't hired. And I think that that's one place where this Agency could do some more work on getting employers to be more transparent in why they reject people, especially, if they're using the credit check, because usually, they will not tell even though they have used it. And I think that that should be mandatory. I don't think that should be optional. I really think that this Agency is still challenged to come up with a guidance on credit checks, and that that is one of the ones that I would really push hard. The last thing I wanted to say is that it's amazing to me. I went to a hotel in February, and I went to the same hotel last week. When we were there in February, people observed that there were no black employees, big New York hotel. And we were trying to figure it out. When I came back this time, there were black employees everywhere. Everywhere. Clearly being trained, all these new trainees, and every single place in the hotel. And I said, "Somebody sued them."

(Laughter.)

I mean, seriously. I said, "They must have gotten a lawsuit," because it was so conscientious. Or somebody came in with a really strong diversity initiative. I don't think that was it.

(Laughter.)

But it was very telling about what we can do when we want to do it and when we feel compelled to do it. Anyway, just an observation.

COMMISSIONER LIPNIC: Reclaiming my time.

(Laughter.)

Thank you, glad to have your response.

Dr. Spriggs, I just wanted to ask you, to make sure I understand your testimony correctly, when you said, about there are tools available for the EEOC or for labor economists going forward to provide some further insights or data about discrimination. Are you referring specifically to audits? Do I -- okay. And can you elaborate a little bit about audits and how you think we, the Commission, would undertake that? Or is that something you're thinking BLS would be doing or --

DR. SPRIGGS: No, I can assure you BLS wouldn't want to do that.

COMMISSIONER LIPNIC: That's what I figured.

DR. SPRIGGS: And, of course, you have the conundrum that if you uncovered something that looked like discrimination, or how you would handle it, since you are an enforcement agency. BLS wouldn't want to do it, because it looks like an enforcement. But if you don't take it to the point of actual hire, and you can't, because it's an audit. It's not a real person. I think you -- I'm not the attorney, so I apologize if I'm speaking out of turn here, but I think to understand when similar resumes and the actual design, you have to vary the resumes as well, so you can pick up, am I looking at discrimination based on race or is it something else. But if you sent out enough of the resumes then -- and you do have to send out people. All jobs aren't on the Internet. All job offers aren't public. So, one of the problems with trying to do an audit through a resume study is that you can only do that if you know that there are job openings. So, you do have to modify it.

But yes, I am speaking of match paired grouping of resumes or people going out so you can get back how often do these disparities occur? What's the size of them? At which point in the process do they occur? And then you have this benchmark, this baseline that can then tell you. We know if you ask employers, do you discriminate, they all say no. Do you think there's discrimination? No. If you ask workers, if you ask black people, they don't think there's discrimination in the labor market. Many of them don't. They think that they're being treated fairly because they don't know. You don't know when you apply. So, you can't do it that way. You actually do have to test. And this, I think, will get you some information.

I just want to pick up quickly on something that Barbara said, though. And that is, where there are questions about disparate impact, again, because I think what the audits are showing us is that this isn't disparate impact. It really is differential treatment. Is that you really do need, if you're going to use credit scores, give me everything on hiring and show me how you actually use the credit score, because I suspect, as is the case with background checks where there's criminal background checks. Drug testing, I think, is another one of these. These are differential treatment, not disparate impact. They are a smoke screen that allows them to discourage people coming back to them, people will assume that they got eliminated because of these criteria and the reality is, that wasn't it.

COMMISSIONER LIPNIC: And can I just ask, I'm assuming that if the EEOC wanted to have some type of audits and establish some type of baseline in terms of discrimination, that -- and effective enforcement, and I agree with you, it's very hard to measure effectiveness of enforcement of any law, particularly in employment law, but so, I'm assuming that you would suggest that you would have to do it, if you wanted a true labor force perspective in multiple locations, geographic diversity, industrial diversity, right, all different types of workplaces where you would have to do this, which would be fairly labor- intensive, right, in terms of actually conducting the kinds of audits that you're suggesting. Is that -- if you wanted really to establish a baseline across the board.

DR. SPRIGGS: It would be, but again, so you probably couldn't use it for enforcement, because you're not going to have enough from one employer to say this employer discriminates. However, I think that would let you speak to strategy. a If I do very large case in a very public way, and pick out the pattern or the practice that I have observed is causing a problem, do I get employers to draw back on that and stop it? And then you can see subsequently, well, did that have an effect? Or maybe you find it's specific industries that tend to do something the most. And then you can target industries and say, well, we'll do that industry. The Wage and Hour Division at the Department of Labor is now doing this sort of thing to try and look at issues of wage theft and other things, and targeting. Where do we see these patterns and practices and how do we make a big enough impact to get that specific industry to change those practices? So, you can see if you can move the needle.

COMMISSIONER LIPNIC: Right, and we would, as Commissioner Barker suggested, I mean, one of the tools that we have are Commissioner's charges. So, if we had something to more inform our work, that would be an ability to do that. Thank you, Madam Chair.

CHAIR YANG: Thank you.

Now, Commissioner Burrows.

COMMISSIONER BURROWS: Good morning, thank you. I wanted to first just acknowledge that I had the pleasure of meeting -- I'm so glad he was able to join us, Ronald Fulton, who's here, Trayvon Martin's uncle, and we are so pleased that you were able to take the time out and hear this hearing.

And I have a number of questions, but very quickly wanted to, I think, start, I guess, with Dr. Lundquist. And in thinking about, you know, we are engaged in such an important national dialog now around policing and some of the difficult issues that are ongoing racial profiling, other kinds of issues, but that have also raised questions about diversity in policing. And in listening to your testimony and reading your written testimony, it made me think about some of the ways that the issues you raised with respect to selection devices may also be relevant to that conversation with respect to diversity in policing. And I wondered if you could speak to that.

DR. LUNDQUIST: Certainly. I actually believe that there really are two levels at which you need to attack the policing problem. And that's both who you're hiring in at the entry level and how you're using techniques to make those decisions, but also, what's happening at those promotional levels. Who are the decision-makers? Who are the people who are actually leading organizations? Who are the people sitting on the interview teams? Who are the people who are the role models that are attracting others to come to the organization? And at least in our work, either one of those alone isn't sufficient, so I would encourage a lot more emphasis on what is happening in terms of that pipeline for leadership positions, particularly in law enforcement.

The other thing that we've noticed in our work is that there are some very inventive techniques that are out there that municipalities and others are dealing -- are experimenting with, I guess is the right word, looking at ways to say, if I really want to change the complexion of this police force, literally and figuratively, what kinds of things could I look at? So, we've actually been looking at some scored application blanks, looking at kind of criteria that are most important to an organization changing its interaction with the community. So, for example, once you've screened all the candidates, and now you have 200 people for ten jobs, maybe that's a point at which you look at that 200-person group and say, you know, we don't have people who speak multiple languages. That would be a value for this organization. Or, we don't have people who have historically lived in the inner city and understand some of the challenges there so that increasingly focusing on those other kinds of diversity characteristics that are useful to the job, that distinguish among otherwise qualified candidates, I think it's a really effective way to go. And we've seen some really good progress with that.

COMMISSIONER BURROWS: Thank you. That's useful. I think this is maybe an area where to use Mr. Livingston's term, the business need for some of this, for diversity, may also go beyond compliance, some of the issues. Ms. Mesa-Estrada, I wanted to ask you, in particular, about -- you know, you spoke so helpfully to some of the issues that are facing the farm workers, and also the important point that Commissioner Barker raised on this issue. And I'm wondering, is there more that we could do to get out our message for folks? I know there's a big fear of retaliation, and that is obviously something that we put a high priority on addressing, but how do you -- how do we do a better job of that, particularly letting folks know about the Commissioners' charges, for instance, so that we can actually get to people and for the folks who are willing to take that risk, they actually know that we're there? Because that's a big concern of mine.

MS. MESA-ESTRADA: I mean, certainly there's challenges in getting to these communities, especially with guest workers, because also depending on the program that you are working on, if you are an H-2A agricultural worker, you usually -- we can tell where they are located, because they have to have housing. So, that's a place that we can easily go and try to reach out to these communities. But, for example, in the case of H-2B guest workers, people coming to work in services industries, in hotels, in landscaping, in carnivals. Usually they don't have housing, so it's very hard to reach out to them. So, my recommendation, I think, I think it's really -- it has to go back to their countries. I think there has to be a dialog with those countries that are exporting these workers. Try to provide the information that can be provided to the workers at the point where they're crossing the border or where they're getting their visas. I mean, the Department of Labor has tried to do this somewhat effectively and through memorandas of understanding with the Department of State, they have provided workers with basic know your rights at the moment that they get their visas. So, maybe this is something that the EEOC could explore further. I know there's been conversations by the EEOC General Counsel, for example, with the Mexican Embassy in trying to get the message out there. But maybe this is a conversation that really needs to be taken at that point of -- the high level, I will say. COMMISSIONER BURROWS: Great. Ms. Castillo- Frick, I was going to ask you about, you know, you work, probably more than most folks every day with people who are about to go into the workforce for maybe the very first time. And in terms of dealing with younger workers, what kind of things are you doing to maybe get them aware or that we should be doing, of the fact that they may encounter job discrimination and how to approach those issues?

MS. CASTILLO-FRICK: It's interesting that you ask that question, because as an institution of higher learning, part of our, what we call learning outcomes for our students as we put them through their pathways is to ensure that they understand and they learn about employability skills, about their rights, about their commitment to the society in which they live. So, as part of our educational process, we do educate our students and prepare them with those things in mind.

As an employer, we hire employees across all levels from our faculty to our support staff, which can be custodial services, personnel, public safety. So, as we see millennials, and I believe Barbara mentioned she's in a household of millennials, we are finding that they're a different group from what we knew. So, we have to treat them differently. And I don't mean differently in a -- but we have to understand their expectations, understand what is important to them, understand that technology is the only thing they know. They only know cell phones and they only know the Internet. You know, we are now bringing them -- there were libraries, and in libraries you could read books. So, we go through that whole process as students and then as employees. I hope that answered the question. CHAIR YANG: Well, thank you very much. We are going to take a brief 10-minute break to 11:05, and I want to thank you all for your testimony. Then we'll have a second round of questioning.

MS. ARNWINE: Can I say one thing before I leave?

CHAIR YANG: Yes, before you leave, please.

MS. ARNWINE: I head up the -- I am the convener of the National Civil Rights Coalition on Policing Reform, and on the policing issue, because I noted when Mr. Weisberg was speaking earlier, you were referring to the Fort Lauderdale racist emails, which we've seen all over the country. You know, we've seen these kind of -- this email culture of derision and hatred towards the populations that these police forces serve. But I think that one of the hardest interventions for us to figure out in breaking down racial isolation and racial exclusion is the, what I call the culture of the workplace. And the problem with policing is that the culture of the workplace, which is a three-century culture, is so inured to the idea that its whole purpose is to control African American and Latinos, you know, and Native American populations. I mean, that's what they believe. And it's not a protection theory. And this, unfortunately, this is not race in the sense of who is employed. I think a more diverse police force is great, and we do know that gender does make a difference when you have a police force that has more gender integration. But we know among men, unfortunately, that the frat culture, you know, just continues regardless of who's in those jobs, and that what you really need is -- I think, is that we need to start looking at some of these workplaces that have been very resistant to integration, very resistant to diversity, and begin to figure out how to break down the cultural impediments that even when you change and make it more diverse, the people of color who come in just become like the people who are there already and have the same prejudices, the same problems, or as we saw in St. Louis, they leave. They just decide they can't work in that environment. They can't fit, and they just leave. So, I just think that there's a deeper dive here that we ought to be looking at, and I think about it constantly, because I go into law firms all over the place, and I'm always shocked that how on one floor, you could have a law firm that's very diverse racially in the sense of who works there, not necessarily in all the lawyers, but you can go right upstairs and see another law firm that's lily white. And it makes zero sense. They're drawing from the same identical applicant pool. But it's a cultural impediment that -- who they think they are and what it means to be racially stratified. So, I just think there's a lot more that we need to look at here.

CHAIR YANG: Well, thank you so much. We will take a quick break. It may be about five minutes now. 11:05 we'll reconvene. Thank you.

(Off the record.)

CHAIR YANG: I'd like to ask everybody to get seated so we can start the meeting.

Thank you. We will now move into our second round of questioning. We'll each have another seven minutes. And I'd ask if you can help us keep an eye on the lights so we can make sure we get everyone out on time.

I wanted to start with a question for Dr. Lundquist, Mr. Livingston, and Ms. Castillo- Frick, those of you who are working with employers to help them design their selection and personnel practices. One of the, I think the challenges that we see today is that often discrimination has become more evasive, as Ms. Arnwine said, or in the shadows. We continue to see overt discrimination including egregious harassment. But we know that often discrimination is happening, but is harder to identify. And whether you call it implicit bias or a double standard or stereotyping, or cognitive errors, one of the strategies that I know Ms. Lundquist talked about and others is designing selection practices that are job related so that you are training your selecting officials to make decisions that will actually help further the business objectives of selecting people who have the qualities and experience that will help in the performance of the job. And one of the things I'd like you all to address is, given that there are many job- related benefits of designing selection processes so that they are highly correlated with job performance, what do you see as some of the challenges encouraging employers to do that? I know it's often expensive to try to design a process that is tailored to that particular job and that smaller employers, in particular, may have difficulty in doing that. And given the challenges that you see, what are some of the things that we may be able to do as an Agency to promote the use of more job-related selection practices so the default isn't, let's rely on sort of gut instinct in an interview on who might be the best person for the job.

So, I'll start with Dr. Lundquist.

DR. LUNDQUIST: Well, it's not an easy question to answer. And I guess what I would say is that to the extent that we can encourage employers to use more structure in their decision- making and train their decision-makers, we're better off. So, the research shows that that kind of creating scales knowing what it is you're trying to measure, being sure that everyone who's evaluating a candidate is using the same framework for evaluating the candidates for the jobs, those kinds of things tend to at least overcome what we think of as unconscious bias, because it provides specific information for the decision-makers to work from. As it relates to how do small employers access these more job stimulation kinds of things. To the extent that there are consortia or even organizations that are starting to look more broadly at simulations for certain kinds of jobs, that can be helpful. And we see that happening because of -- it's less expensive to use the technology today than it was in the past.

CHAIR YANG: Thank you.

Mr. Livingston?

MR. LIVINGSTON: I don't know. When it comes to promotions, I think employers feel like that they know the people who they -- that work with them and they don't need tests. They don't necessarily need interviews, but they usually will go through interviews, that they are making decisions based upon their own personal observations of the employee's performance. And after all, when you use these other tools, they essentially are proxies in situations where you do not know the individual and you're trying to make judgments about them based upon other things that are proxies for their performance. And when you do know the person, then these proxies for performance do not really have very much meaning, so I think that's one of the reasons.

I do think -- I'm glad that you called on me, because I did want to say that I think you should view the employer community also as an ally with the EEOC on that, and that terms like "targeting" and other messagings need to be thought through carefully to make sure that you're not creating an us-versus-them approach to your mission, which is not -- it's not so much enforcement in the sense of litigation, but it's to bring the country together around these issues and to accomplish our overall objective of fairness to all groups.

CHAIR YANG: Well, thank you. I share in that objective and I think it is incredibly important for us, as an Agency, to partner with the employer and the employee communities to have a greater impact, so I thank you for your work helping us do that. And, Ms. Castillo-Frick, can you address this?

MS. CASTILLO-FRICK: Sure. As Dr. Lundquist stated, it is important when interviewing or recruiting for positions that the framework of what is the job, what are the qualifications required and the training of the interviewers is all interrelated. So, the focus has to be as an employer on the skill set, the ability to do the job, and the questions that are asked must be framed around experiences that that applicant has had with relation to the job at hand and not something else.

When it comes to promotions, which is also interesting, I do hear that a lot that in some organizations, and I proudly say "we," we pride ourselves for being and we are an extremely diverse organization. Our process includes committees where they're a different representation from all levels in the organization, diversity of gender and race and color, but also diversity of thought. So, that cohesive group when interviewing internals for promotions, as well as externals in many instances have everyone on the same playing field. So, that's important as an organization, I believe, to have the policies in place, but also to consistently train and remind those who are interviewing of the importance of a diverse and inclusive workforce.

CHAIR YANG: Thank you very much. I will turn it now to Commissioner Barker.

COMMISSIONER BARKER: Well, I'm going to do something a little bit different. That is, rather than focusing on a few questions, I just want to make a few remarks to all of you. First of all, I'm sorry that Ms. Arnwine and Dr. Spriggs had to leave. I want to thank all of you for your very insightful testimonies. I think this is one of the best meetings we've had from the standpoint of the testimony and interaction with the panelists and I really appreciate it. I was particularly disappointed and -- not distressed, but I guess I could say distressed, to hear about where we have not come in 50 years on race relations and racial discrimination. Some very shocking information from Dr. Spriggs, in particular, with the data. And that's just -- it's a reminder to us that that's an issue that we haven't -- it's not over. It's not over. It's far from over. Going back to the issue of the migrant farm workers, which, you know, is always my focus, appreciate so much your remarks, Ms. Mesa-Estrada and your remarks. And something else I would add to your talking about how difficult it is to reach these, say, women in particular, because that's my focus.

One thing, another aspect that makes it difficult is for the migrant farm workers, because of the very nature of their work, because it is migrant, you know, when you have a woman come forward, and then you go out to try to investigate and find witnesses, a lot of times those witnesses have moved on and you don't know where they've moved on to. It's not like, you know, they're leaving forwarding addresses and their employers now know exactly where -- you know, you don't know. And maybe they'll be back next season, maybe they won't. So, these cases are very difficult to put together.

Another particular concern of mine is that, you know, I think we can't forget that a lot of times, these women are starting work at age 14. Under certain circumstances, these young girls can be 14 years old and, you know, they're out in -- working, 2:00 a.m. they show up to be picked up to go someplace. It's not like there's a human resources office down the hall. I mean, they never see an employer. They never see an office. They're just -- they're in the fields. So, to try to communicate to them and instill in them a confidence, okay, I don't see anybody who's there to accept a complaint from me, but I know, because I've met so and so, and I trust and so, and she tells me blah, blah. But they know a particular person that they can contact, you know, a live human being that they've met that they have confidence in that will get them to the EEOC or other agencies, Department of Labor or Justice, wherever they need to go.

Which brings me to my last point, which is that it's situations like this that really point out, I think, how different our organization is becoming and will become in the future, because we're no longer an Agency that sits behind doors in offices and waits for charging parties to come to us. More and more, and particularly with the migrant farm workers, but with the Latino community who are in the low-wage jobs and have the language barriers and the cultural barriers. Our investigators are people who are out in the fields. They're not sitting behind a nice, comfy desk in an air-conditioned office. They're going to fairs and activities, and they're bilingual and they are not just Spanish-speaking, but they speak the various dialects. And this is more and more what we need to be looking for when we hire investigators.

I know I was pleased to see that we had hired a number of bilingual investigators, but it needs to be more and more of our focus, because we need to find a way to get out and find these people. Thank you.

CHAIR YANG: Thank you.

Commissioner Feldblum.

COMMISSIONER FELDBLUM: Thank you. So, thank you. I'm glad that Commissioner Burrows recognized Trayvon Martin's uncle in the audience, Mr. Ronald Fulton, who is a member of the Community Relations Board here in Miami, as well as Mr. Edward Prince (phonetic), who is part of a community development effort here in Miami. And thank you to both of them -- (Applause.) -- for their work. And also, I think, it makes the point of trying to come out to the community and engage with folks who are here.

So, picking up, again, on the issue of how do we make a difference so it's not just words. How do we make a difference? I want to start with Mr. Livingston, since you didn't have a chance on my seven minutes before, and then Mr. Weisberg, whom I had to cut off. I am really curious about how we can make an impact on promotions. But you talked about a company that was very intentional about its promotional decisions. There may be others that are intentional in terms of committees. But I wonder how we, as the EEOC, a government agency, can help with that, because the one thing we know is if we bring a case about promotions, that might cause changes in other companies, as well as the company we sue. But what are ways in which we can actually engage in a proactive, best practices effort and the reason, then, Mr. Weisberg, when I have pushed that at various times inside the Agency on different issues, I have gotten pushback from our lawyers because they say, "Well, if we work with a particular company on a best practice and we say this is what would work, that's going to put us at a disadvantage if we want to then sue them because it's not working." So --

MR. LIVINGSTON: So, I thought you were going to ask me a hard question.

(Laughter.)

COMMISSIONER FELDBLUM: Go right ahead with the answer.

MR. LIVINGSTON: When I said earlier that you should view all of us as allies, you should view the employer community as an ally also, part of what I was thinking is that although they don't always agree with your interpretations of the law, that the employers that I represent and other large employers tend to try to bring their policies into compliance with the EEOC's view of the law. And in that way, for example, the EEOC's policy on the use of criminal background information has become transformational even though the EEOC has not been successful in those lawsuits that you said, you know, that they can bring and make a difference.

It's not necessarily the lawsuits, it's just the -- the employers want to comply and move beyond compliance. And like I said, even in those situations where they believe that they are being imposed upon in ways which are not required by Title VII, they still do comply, so the EEOC has huge influence in the way that employers structure their practices. You do make a big difference.

COMMISSIONER FELDBLUM: Well, Don, as you know, because I've said it in many settings, I'm actually a strong proponent of partnership. I always say, if you consider employers the enemy, then you have basically given up the fight on civil rights, because there will never be enough enforcement resources to really make a difference. So, while we need to be a strong sheriff in town, we also have to figure out how to engage in a proactive manner, which I think is a nice setup for you, Mr. Weisberg.

MR. WEISBERG: Well, thank you. I think the sheriff -- I think the lawsuits serve a value in -- with respect to the particular employer in that situation, and provide a really reality check for other employers that there's consequences to their not complying with the law. And I think that's a message that's really critical, that we can't lose sight of.

I agree, with respect to the criminal background checks, and I mentioned that in my written remarks, just been really taken on how, when they were issued initially, every meeting I would go to, I was just viciously attacked for why do you want to have rapists work at the child care centers? And that was the mantra. But over time, I think it's sort of been coming kind of part of the sort of the framework of how many employers and their human resources people especially sort of tend to, at least, advocate internally is how it should be looked at.

With respect to promotions, I think -- and I mentioned that in my comments, I think it's real important that -- I think hiring is critical, but just getting entry-level positions and that sort of being our end goal is insufficient. And I think that the ways in -- and some of the ways that we can possibly deal with it is through either compliance, reconciliation agreements, or in consent decrees, where we've got a promotion class issue. And we've been doing this in hiring, we've not done it in promotion, where we really track in a hiring case -- we've got several of them out there, consent decrees where we require targeted recruitment to generate more applications from the black and Hispanic community. And then, once these applications reach the -- are entered into the system, tracking them so that they have to sort of -- at what stage does -- is the applicant sort of disqualified or a decision is made not to hire so that in monitoring that, they've kind of done the work for us to be able to do that.

Now, if there could be a comparable structure for promotion, because where, as Don said, where the employer seems to know best. And I think that there's -- well, I think employers want to do right, but they kind of -- we found that in our discussions and negotiating consent decrees that often the money's not the issue, but it's -- they really don't want us in their business. They don't want us telling them how they do their training, what their policy should be, or even -- or any of that type of thing. And I think that -- I think whether there's guidance on promotion, at least to give some guidelines, but I think -- and I don't recall who said it, but the more structure there is, the more -- the easier it is to examine it and see for accountability as opposed to the tap on the shoulder where people don't apply and the criteria is vague and you really are troubled when someone comes to you, I mean, cases we investigate. And they might work at a bank, and they say, "And by the way, there's no black managers, branch managers," and no one quite knows why and how that happened.

COMMISSIONER FELDBLUM: Right. If I could just take 30 more seconds, I'm glad that both of you mentioned the criminal background checks, because this is something that Commissioner Lipnic and I were trying to work on in terms of trying to do some best practices not in enforcement, but actually going out and saying this might be a way in which you can do a legitimate background check system. And as I said, we got significant pushback, but as Mr. Prince just told me, part of his issues in terms of community development is about the criminal background checks and the credit checks. And if we just rely on enforcement, I don't think that's going to be enough. But I agree in terms of the transformational effect of the guidance we put out.

CHAIR YANG: Thank you.

Commissioner Lipnic.

COMMISSIONER LIPNIC: Thank you, Madam Chair. Dr. Lundquist, related to criminal background checks, I have a quick question for you and then I have a question for the rest of the panel. Would you agree that background checks, particularly criminal background checks, are oftentimes proxies for qualities that employers are looking for in candidates? Honesty, trustworthiness, will you show up on time? And then -- that's the first part. The second part to that is, are you aware of tests or selection devices that employers can use that would more effectively demonstrate those qualities and do those types of tests? What do they show in terms of adverse impact?

DR. LUNDQUIST: Relative to the research -- relative to employers' uses, oftentimes, criminal background checks come somewhat later in the process than things like biodata and integrity tests. So, as I mentioned earlier, those are tests that show great promise in terms of reducing racial and ethnic bias or certainly adverse impact relative to groups. So, I think that there is real possibility there for using other kinds of measures that are out there that employers can have access to that are published. In addition, I guess I would just encourage the Commissioners to think about the guidance that you issued that said validation was an opportunity that could be used relative to criminal background checks. We've had some opportunity to do validation of criminal background checks, and I think quite successfully. Where an employer should be able to understand, there are some crimes which really are job-related and there are many, many others that might show up on their list that wouldn't be job-related. And I think that would be a good thing going forward for more employers to do that.

COMMISSIONER LIPNIC: And then, I have a question for you and Ms. Castillo-Frick and then for Don. And this is sort of an intersectional question, related to the changing demographics in the workplace. And what I had said in my opening statement, I don't want to pre-suppose that we're necessarily, as a society, going to have all sorts of internal conflicts in our workplaces going forward. But, so in your testimony, Ms. Castillo- Frick, you said, change management for voluntary diversity programs may occur in phases, and then you go on to say, employees and managers, however, can disrupt these processes and enable positive interpersonal dynamics in several ways. And you talk about some of the ways. So, my question for the three of you is, and again, sort of related to selection devices and testing within an employer's workplace, are there tests that would -- that demonstrate not just the value of diversity, but sort of enable a culture of diversity? Are there those types of tests? How are they -- and then, I guess, and how are they used? And to what degree have you seen them be successful? And, Don, in particular with your clients. So, I'll address that to all three of you.

DR. LUNDQUIST: Maybe I can just quickly talk about the testing component of it, and the others could chime in. What we've seen is a lot better use of the technology that we talked about for employee development and identification of a broader set of folks who might be able to ultimately be considered for promotion. So, when you have technology-based assessments of existing employees, not just for the promotional decision, but for deciding who's on the succession list for development, what kinds of development that those people need? You can cast that net far broader than what was happening in the past with most employers who said, "Okay, who are the three people that are nominated by this manager? Okay, those are the three people that we're going to put through development." What we've seen real success in as employers, very broad-based, administering these tests, identifying developmental needs, and building the diversity of the pipeline. And I think, ultimately, that's what ends up helping that person that the employer knows who says, okay, that person is qualified for the job, because they are. They were given those opportunities.

MS. CASTILLO-FRICK: Just to follow up on what she said, not only as we are building our succession planning -- and succession planning, I can't remember who said it, it has to start at all levels, not only just for the top tier. It has to be at all levels. But what's important is that it must be part of the process to remind those that are working on it that diversity has to be part of that identification process as you're identifying candidates. And I agree with what you said. Taking at face value, a manager says, because I know and I'm going to recommend so-and-so-and-so, most likely will mean that there's a lot of commonalities if you look at them and look, feel, way that they handle themselves, all of that. While, if you have a process where there's some assessments that take place, will be more spread out. But diversity, as a consideration of that process has to be included, because otherwise it won't.

MR. LIVINGSTON: You did ask a hard question.

(Laughter.)

And I think it's helpful to remember that assessments sometimes were employed in order to eliminate or moderate potential disparate treatment. And it was a way to provide a single measurement to all the applicants so that you could make sure that you were not considering a prohibited factor in the promotion process. The complexity of some of the assessments resulted when paper and pencil tests inevitably had a disparate impact on minority -- certain minority groups. And so, other assessments were added to that to mitigate that potential disparate impact or to balance the books, such as, for example, adding a structured level interview after the paper and pencil test. And that often would create a -- eliminate bottom line disparate impact even though the paper and pencil test itself may have had disparate impact. So, some of the things that trouble you were actually put into place in order to prevent discrimination.

COMMISSIONER LIPNIC: So, what the -- it's like we're coming full circle, then. What's the --

MR. LIVINGSTON: Well, that was the hard part of your question.

(Laughter.)

COMMISSIONER LIPNIC: Yeah, well, that's why I'm asking you.

MR. LIVINGSTON: And I tried to give you a Washington, D.C., kind of an answer to it that I was hoping you would buy.

COMMISSIONER LIPNIC: Okay, I'll save it until the end. Thank you.

MR. LIVINGSTON: I'm sorry, my time's up.

(Laughter.)

CHAIR YANG: Commissioner Burrows.

COMMISSIONER BURROWS: Well, fortunately, Mr. Livingston, I'm going to pick up on that theme and since we're not in D.C., maybe we can continue.

(Laughter.)

And let me add one sort of other thing to the mix, because it sort of pulls together some of what each of you have said today and in your testimony. You know, with respect to the promotions issues and the hiring, and I think Ms. Castillo-Frick was saying that, hey, people naturally gravitate to folks who are like them. And part of what we're doing is trying to get a fairness that goes against that particular grain. And so, with a situation with hiring, it's a little bit less likely than promotions, as you pointed out, to generate a pool of people that you already know. With promotions, it's much more likely. I suppose you could have some from inside, some from outside applicants. And one thing that, in thinking about that, I was really struck by the suggestion that you really try to, to my way of phrasing it, to sort of grow the farm team. And I'm wondering about reactions -- it lets you off the hook a little bit here, about the idea of -- because it's a slightly different question, the idea about -- could you sort of emphasize, because diversity as a concept will sell with some people, but they're probably more likely the people who don't really need that message, and it won't sell as well with other people. But the idea that you want to sort of grow your best farm team, have your -- so right as you bring people on, start onboarding and developing them so that rather than just the people who you already are gravitating to, getting that kind of extra training, help along the way that identified as potential folks to promote, you are already kind of looking at everybody as trying to -- as potentially in that pool and trying to farm them. And that might be a better way so that, you know, because sometimes as a benefit, employers don't have to panic and say, oh, people just left, now we need to hire. The person I -- my favorite just went to a different firm. And coupled with that, how you ensure that as you're doing that -- and law firms are a good example. I worked in a law firm, you obviously are familiar with this. Part of what goes on is that you can take two equally qualified people and if you give them the right work, then in the end of two or three, four, five years, they're completely -- they look completely different. But what happened was, somebody had someone who was putting them on the big cases or if it's a different kind of job, putting them on the -- giving them the opportunity to shine and the other person would have done just as good a job but never had that chance.

So, I wanted to start with whoever wants to begin. I will go to Mr. Livingston, since you were interrupted. But, talk to me about how we could -- if we're going to do best practices, how we could kind of encourage that thing, and how do we get employers to want to partner on something like that.

MR. LIVINGSTON: Well, I tried to speak to this issue in my -- both my written and my oral comments and I think I could sum it up by saying that diversity can't be an initiative. It has to be part of a corporate culture. And it's not something that you do for the next three weeks and you bring in the diversity trainers and you work with your team and then they're gone. And then, you know, you got a new CEO and that's the end of it. You're on to something else. That it needs to be a message that's communicated through the company's moral code, through its -- not just through its practices, but through the regular communications from the chief executive. And when that happens, and when people believe it, then when you have those two people to make comparisons, then the diversity is always in the equation. And the management lawyers here, they see it regularly, where it's not a case where you have two people and you can't decide upon them, so you promote the white male. In fact, we see oftentimes that the result is just the opposite of that, because -- but we live by and large in a culture where people understand the messages that are coming from the EEOC. They believe in the principles that underlie these statutes, and they want to not just be in compliance, but they want to be able to compete on national and global markets. And diversity is necessary. MS. CASTILLO-FRICK: I guess I have two words, and that is leadership commitment. If there is leadership commitment, it'll trickle down all the way. Commitment to diversity, commitment to inclusion. If the leadership lives it, communicates it, makes sure that it happens, employees all the way at the bottom and back up, will live it and will see the benefits of it when there are promotional opportunities as organizations build their succession plans, because there is that commitment. It is not -- like you said, it's not the word of the week or the program of the month. It's a total commitment through the life of the organization.

DR. LUNDQUIST: One of the things that's really helped that -- (Applause.) -- one of the things that's really helped that is changing the diversity of the leadership of any organization. So, some of the organizations that have been most effective in getting senior leadership commitment are people -- are organizations who have diverse leaders at the top of those organizations. And that certainly is not the only way to get leadership commitment, but it certainly is a trend, and I think that it's one that this whole discussion of building the farm team, building the diverse pipeline, giving those experiences to folks who are much more diverse than the pools who used to be considered for those positions is essential for us to make progress.

COMMISSIONER BURROWS: I don't know if you wanted to speak to that, Ms. Mesa-Estrada.

MS. MESA-ESTRADA: Of course, I'm listening to what they're saying and I'm thinking of my clients and it's like, oh, my God, I mean, they work in industries where what are we talking about? I mean, certainly there's no policies. Certainly, there's not an HR office to even make recommendations. And they certainly have more than 15 employees so there will be -- I mean, there's the ability to really file charges on their behalf. And for me, it's like a small -- it's a small curtain, I mean, it's how can we effectively reach out to those employers in these industries that are hiring low-wage workers, who create all of these equal opportunity policies, but are really not doing nothing else. And this is something that I share in my testimony. I mean, just putting those equal opportunity policies on paper is not enough. And for that reason, I'm a very strong proponent that we do have to litigate those cases, because it's the only way that we can really send a strong message. And I think that's the purpose of many organizations representing farm workers. We want to send a strong message to the farmer to stop pretending that he doesn't know that he law is being broken by his staff, but his supervisors, because that's what they say. I mean, every time, it's always the same. "Oh, I can't communicate to a client. I only speak Spanish. I have no idea what's happening." Well hire someone independent to come and talk to the workers. How hard is that? Let's do a training for farm workers. They may not read and write, but they listen. They have ears. And you could talk to them. You could just do a very small training and explain to them what are their rights under Title VII. I don't think that's a hard effort. So, I will share that before I get more mad and angry about that.

(Laughter.)

CHAIR YANG: Well, thank you everyone. I want to thank you for a really fascinating discussion today and for all the time you put together thinking about your testimony and what you wanted to share with us today.

One of the reasons that we had this meeting focusing on race and ethnicity discrimination is because it is often such a difficult issue for people to talk about in the workplace and even socially. And what we hope is that this conversation and others can help identify both some of the challenges and continuing barriers that exist in workplaces today, as well as real solutions that employers can be putting in place. We, as an Agency, want to ensure that we are reaching some of our most vulnerable workers, that they understand their rights and actually experience equal employment opportunity in the workplace.

So, I want to thank you all for really starting that productive discussion for us. And I want to share some of the procedural issues, and then

I will turn to my fellow Commissioners for some brief closing statements. I will note that we will hold our record open for 15 days and we invite members of the public to submit written comments on any issues or matters discussed at this meeting. Those comments may be mailed to: Commission Meeting, EEOC Executive

Officer, at 131 M Street NE, Washington, D.C., 20507 or email to: CommissionMeetingComments @EEOC.gov. That is all one word in the email address. All comments will be made available to members of the Commission and to Commission staff working on the matters discussed at the meeting. In addition, comments may be disclosed to the public. And by providing comments, you are consenting to the use and consideration by the Commission and to their public dissemination. Accordingly, please do not include any information in the submitted comments that you would not want to be made public, such as your home address, telephone number, et cetera. Also note that when comments are submitted by email, the sender's email address automatically appears on the message, so I suppose that we will have that public/private line to grapple with.

So, at this time, I would like to offer each Commissioner the opportunity to make a closing statement, and if you could limit that to about two minutes.

Commissioner Barker.

COMMISSIONER BARKER: I will, thank you. I just want to extend my appreciation again to each of the panelists for your very insightful written comments, but I think more importantly, your just off-the-cuff responses that you gave and further insight today. Just engaging in this dialog was very, very helpful.

But I'd also like to thank Chairman Yang for designing this topic and choosing Miami to -- I think you're absolutely right. This is a prime place to hold this topic. Thank you Chairman Yang.

(Applause.)

A very timely topic and good for all of us as Commissioners to be reminded of, you know, to bring these issues front and center.

But I'd also like to thank everybody in the audience for taking the time out of, I know, your very, very busy days to join us and to engage in the whole thought process that all the testimony today has started for all of us. So, thank you very much.

CHAIR YANG: Thank you.

Commissioner Feldblum.

COMMISSIONER FELDBLUM: Well, I thought I wouldn't have a closing statement, but like Ms. Mesa-Estrada, I feel compelled to say the following. I think a lot of employers think about retaining labor talent. I've heard that so many times, retaining talent. But, I think, a lot of employers of low wage and what they consider low- skilled jobs are about restraining labor costs as opposed to retaining their labor talent. And so, Don, you might have thought I asked an easy question, but I certainly don't feel as if I got an answer to my question, which is, how can and perhaps can the EEOC partner with employers on best practices? I think we do a great job partnering in terms of public education and I think we do a good job on litigation, which I think is key. But can we partner on some best practice like, why don't you hire someone who can speak Spanish, who's external to the company for a company that we do not plan to sue and do not plan to bring a Commissioner charge against? Because, there's a reason we're still having this hearing even though there are lots of, apparently, well- meaning employers. We need to do more and I don't think that there are easy answers to these questions. Thank you.

CHAIR YANG: Thank you.

Commissioner Lipnic.

COMMISSIONER LIPNIC: Thank you, Madam Chair. Thank you to all of our witnesses for your time and your expertise today. I just -- I guess a couple take-aways that I have. One, as I said in the beginning, diversity is upon us. It's not an aspirational thing of the future. It is already upon us and it certainly will be more so in our workplaces in the future.

I think a couple of the challenges for us, as the Commission, in our work, we are called upon to do our work in a tremendous diversity of work places. So, those that are low-wage, we have to enforce our laws across geographic diversity, but in all types of workplaces. We are also now doing this work in the era of big data and metadata and the cloud. And I don't really know how anybody gets a job anyway anymore when they apply to something online. I mentioned to our Chair a week or so ago, I think we should do a hiring on how do people actually get jobs today. So, that is something that I think is some consideration for us, but what I really think going forward, given the diversity that is upon us, is how do we think about our work in a way that not just achieves diversity, but achieves that type of respect and understanding in workplaces where we don't end up in discrimination and we don't end up in situations where people are not being hired. And I think that's the big challenge for us, and all of us, really, in our work going forward, for employers, for employee groups, for all of us who are engaged in this. Thank you, Madam Chair.

CHAIR YANG: Thank you,

Commissioner Lipnic.

Commissioner Burrows.

COMMISSIONER BURROWS: Thank you. In the 50 years since the EEOC opened its doors, America's seen just amazing changes, technological changes that folks probably could have not dreamed about half a century ago from the Smartphones, the Internet that Ms. Castillo-Frick was saying that some young folks think that's all there is now. And those technological advances have connected us across the globe. And I think that -- I'm hopeful that we can sort of have our moral and social -- the respects that Commissioner Lipnic is talking about, that we can focus on those kinds of changes and have as much of an advancement in that, that that can be as important in America as the technological changes. It certainly is important to folks' everyday lives and to really sort of see that kind of change in American workplaces. I think that this Commission meeting has brought us closer to that kind of an ideal, and that having the ability to reach our most cherished values, equality, justice for all, those are the things this country was founded on. Those are as important as having the fastest Internet access. And I think that if we truly believe the things that this country was founded on, we can also focus on that and give it the same kind of priority. So, I'm hopeful that we'll get there. Thank you.

CHAIR YANG: Thank you.

Well, I'd once again like to thank you all for your invaluable contributions to this discussion. You have brought important insights and we look forward to continuing this conversation and working with you all as we make continued progress for our nation.

With that, do I hear a motion to adjourn the meeting?

COMMISSIONER FELDBLUM: I move that we adjourn.

CHAIR YANG: Is there a second?

COMMISSIONER LIPNIC: Second.

CHAIR YANG: All in favor.

COMMISSIONERS: Chorus of Ayes.

CHAIR YANG: Opposed.

(No response.)

Thank you, the meeting is adjourned.