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Meeting of July 1, 2015 - EEOC at 50: Progress and Continuing Challenges in Eradicating Employment Discrimination

Written Testimony of Honorable Cari M. Dominguez
Former Chair, EEOC
Senior Vice President and Chief Talent and Diversity Officer
Loma Linda University Health

Good Morning Chair Yang, and Commissioners Feldblum, Barker, Lipnic, and Burrows.

Thank you so very much for the invitation to be part of this very special Commission meeting, in which we observe and celebrate the 50th anniversary of the EEOC. It is a privilege and a personal joy for me to be here with you today.

EEOC has played a pivotal role in advancing civil rights in employment not only in our country but, indeed, throughout the world. I add my heartiest congratulations to the entire EEOC family for their enduring efforts toward the eradication of employment discrimination and the pursuit of freedom to compete on a level playing field where everyone can rise as far and as high as their talents and interests allow.

This morning, I'm honored to be part of this prestigious panel of experts, all of whom have devoted their life's work to studying issues, identifying barriers, and offering solutions toward a more just and equitable workplace.

I have been blessed with length of years, which has allowed me to look at equal employment opportunity from just about every vantage point possible: as an investigator and compliance officer in my earlier years; as a corporate executive; as a consultant to many of our major corporations; as Director of the OFCCP and Chair of this Commission; as a partner in two international executive search firms; and more recently as a board member of publicly held corporations serving on committees relating to governance, human resources, and talent development. The tie that binds all these diverse roles has been my personal drive and commitment to promoting equal access and opportunity.

I have also been part of much of the history of EEO in this country-from the 60's when the focus was primarily on race; to the 70's and 80's when the women's movement came into being and the Vietnam war produced a regrettable plight for our returning veterans; to the 90's with the inclusion of people with disability into our focused efforts; to the current, very diverse and broad focus covering all the issues of the day--from gender identity and sexual orientation, to religion, age, color and national origin. Many of these issues have been with us since the issuance of Title VII; yet, they continue to reveal themselves in different ways. I vividly recall the anger that was misdirected at innocent Sikhs and Muslims after 9/11 just because of their national origin and the faith they practiced.

Constant vigilance is required to eradicate workplace discrimination. When my sons were little, there was a game they liked to play-it was about hammering down alligators as they surfaced-and just as they hammered one down, another one would rise, and sometimes two and three at a time! In many ways, attitudinal biases and prejudice remind me of that game; just when we think we have something under control, an alligator pops up again, never knowing where it was coming from, requiring us to be vigilant at every level and not to assume that an issue won't rise again just because we have dealt with it before. We clearly haven't resolved many of the discriminatory issues of the past. They have only become more subtle, more difficult to detect, and more difficult to eradicate.

This morning I have been asked to comment on the employment challenges of the day and how employers are addressing those challenges. I suppose a follow up question might be, "What lies ahead for the Commission in light of today's workplace challenges? "

Today's workplace continues to grow in complexity. Employers are facing multiple challenges daily, ranging from industry consolidations, global competition, dramatic technological changes affecting the way we work, and increased pressure from investors and shareholders toward greater returns.

Juxtapose these concerns with the explosive demographic shifts taking place. More and more cities across our Nation no longer have majority populations of any particular race or ethnicity. The State of California, where I have been working for the past four years, is a "majority/minority" state, with 41% White; 37% Hispanic; 13% Asian/Pacific Islander; 6% African American; and a growing number now identifying under "Two or More Races" at 3% of the total population. Texas, New Mexico and Hawaii are also majority/minority states, as are 78 counties and more than 22 of the largest metropolitan areas in our country.

The primary challenge for employers has been to meet business pressures with the talent available. CEOs continue to rank "attracting and retaining top talent" as a key priority. While this would appear to bode well for diversity, we continue to find imbalances in the categories primarily occupied by diverse groups, with women, racially and ethnically diverse employees continuing to predominate in lower level EEO categories, such as service workers, administrative support, laborers, and helpers. No doubt much progress has been made over the past 50 years; yet, pipelines into mid and upper level management roles continue to leak out talent. Greater competition, more employee options, and lifestyle choices are driving the Millennial generation (1980-1999), projected to exceed 75 million in numbers, toward greater independence and less reliance on any particular company. This generation and the one following it, Generation Z, will be the most diverse to ever enter the workplace. They encompass the greatest diversity potential for higher level positions based on educational attainment and experience. They are mobile, self-directed, and great negotiators, making retention of this talent a major challenge for employers.

So, how are employers addressing these challenges? Enlightened employers have integrated diversity and inclusion into their business strategies. Led by CEOs and top executives, they have aligned their employment practices and reward structures along diversity outcomes. Offering flexibility in benefits and work hours, and promoting opportunities for advancement and growth through development programs, employers compete for talent, oftentimes addressing interests on a per employee basis, rather than a general, standardized format. Recruitment strategies are intentional, canvassing all pools of talent, and diversity programs and initiatives are touted as commitment to a culture of inclusion.

Employers communicate the business case for diversity as adding to the "bottom line." How? By attracting and retaining top talent from whichever group it is found; by reducing costs associated with turnover, absenteeism, poor morale and potential liability; by increasing customer satisfaction and brand loyalty; and by demonstrating commitment to reflecting the diversity in the populations served.

More recently, employer focus has been on inclusion as a retention tool. Companies are striving to create a work environment in which all individuals are treated fairly; have equal access to opportunities and resources; and can contribute fully toward an organization's success. Enlightened employers use tools such as diversity scorecards to measure progress in increasing diversity and inclusion within management ranks, and tie diversity results to the annual manager incentive payout. There are two components to these scorecards-quantitative and qualitative. The quantitative part monitors hires, promotions, training, and retention activities, while the qualitative part tracks employee engagement, promotes diversity programs and initiatives, and maintains a robust training of managers and supervisors that reaffirm a culture of inclusion. Managers who meet talent acquisition and retention targets, who maintain a robust employee development program, and who affirm the value of diversity initiatives and programs with the presence and participation are rewarded. Reward and recognition provide behavioral incentives to achieve the desired diversity outcomes.

It is true that social media and technology have changed the face of the hiring process. LinkedIn, Facebook, and other industry/company specific networks have become the go to sources for recruitment. Enlightened employers have addressed this issue by establishing robust monitoring systems. At the end of the day, it doesn't matter where applicants come from, as long as they reflect the diversity of talent that exists. If active monitoring systems reveal that there are issues relating to open and inclusive recruitment, enlightened employers will further evaluate their sources and make appropriate corrections. In this digital age, proactive monitoring of all employment practices is pivotal to a discrimination free, inclusive workplace.

In terms of some specific challenges I see looming, I can point to three areas:

1) Candidate Screening for Organizational and Cultural Fit
Employers are turning to software analytics to assess up front the potential match of a candidate to a job. These screening services (not an assessment tool) are intended to narrow the pool of candidates to the ones most closely fitting the position requirements as expressed by the employer. Such software products are growing in popularity, being promoted as a means to ensure best job fit while reducing costly turnover and increasing the probability of hiring high performing individuals in that particular job. Whether all these services have undergone validation under the Uniform Guidelines on Employee Selection Procedures and whether federal agencies can keep up with their proliferation remain a concern.

Once these screening services identify the presumed best candidates, employers often follow up with assessment tools designed to evaluate the applicant's fit with the organization's culture and values. These values based assessments are conducted using peer based and behavior based interviewing. The challenge being that more often than not, the interviewing team is not diverse, opening up for interpretation the responses offered by the applicant, particularly when the focus is on values that are open to highly subjective conclusions, such as integrity, compassion, or excellence.

Again, a strong monitoring system designed to evaluate every step in the selection process could identify and address the potential for adverse impact or disparate treatment before it becomes an issue.

2) Older Workers Facing Barriers
The multigenerational workplace has brought about significant shifts in attitudes and perceptions, potentially to the detriment of older workers. The average age of incoming CEOs has been dropping consistently over the past several years, and the number of CEOs under 40 continues to rise, especially in industries such as technology. Older workers face perceptions that question their flexibility, adaptability, and technology proficiency. They increasingly report to a generation of younger managers possessing contacts and sources drawn from their own networking experiences and background, typically comprised of contemporaries. Hiring decisions can be influenced by "runway left" on one's career. While age is no guarantee of one's length of stay in a particular workplace, it appears to be a hiring consideration, as evidenced by the challenges faced by applicants in the 55+ age group.

I commend the Commission for addressing the recruitment and hiring issues in its strategic enforcement plan priorities, and recommend the use of directed investigations for putting the spotlight on this issue whenever questionable practices, or questionable results, come to the agency's attention.

3) Health Benefits and Disability
The rising cost of health insurance premiums, now estimated to cost an additional 25% -35% over a worker's base pay, has prompted employers to establish wellness programs designed to promote fitness and healthier lifestyles. Often, employers will differentiate their plans by offering reduced premiums if the employees agree to certain terms and conditions, such as keeping track of their blood pressure, maintaining a healthy weight, not smoking, and staying active. When making selection decisions, the potential exists for employers to focus on lifestyle questions considered hazardous to one's health and costly to the employer. Asking an applicant about lifestyle behaviors is not only non-job related but also could lead to the individual "being perceived" as a person with a potential (or existing) disability.

While I whole heartedly support a healthy and fit lifestyle, I am concerned that the emphasis on eliminating potentially unhealthy personal decisions that are non-job related could lead to violations of the ADAAA. In the end, it could prove more costly to employers if faced with liabilities. This is an area needing some attention to ensure that employers don't enter a slippery slope counterproductive to their intentions. The Commission should provide to the employer community as much guidance and technical assistance as possible on the issue of wellness programs.

In closing, let me commend you on your selection of issues that make up the Commission's strategic enforcement plan. While I have chosen to emphasize three in my remarks, I believe that the Commission's plan provides a very comprehensive outlook into the relevant and timely issues that employees face today. Let me also express appreciation for the agency's efforts to educate and provide technical assistance to the employer community. Such efforts assist us in promoting a fair and inclusive workplace. Again, I thank you for this invitation and wish EEOC a very happy birthday.