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Meeting of November 13, 2013 - National Origin Discrimination in Today's Workplace - Transcript


Announcement of Notation Votes

Introduction - National Origin Discrimination in Today's Workplace:

P. David Lopez, General Counsel

Lucy Rosas, Lead Coordinator, Immigrant Worker Group


Thomas A. Saenz, President and General Counsel, MALDEF

Michael Eastman, Senior Counsel and Vice President, EEAC

Laboni Hoq, Litigation Director, Asian Americans Advancing Justice

Elizabeth Torphy-Donzella, Partner, Shawe Rosenthal

Rebecca Smith, Deputy Director, NELP

Douglas J. Farmer, Shareholder, Ogletree, Deakins, Nash Smoak & Stewart

Motion to Adjourn


Jacqueline A. Berrien, Chair
Constance S. Barker, Commissioner
Chai R. Feldblum, Commissioner
Victoria A. Lipnic, Commissioner
Jenny R. Yang, Commissioner

P. David Lopez, General Counsel
Peggy Mastroianni, Legal Counsel
Bernadette B. Wilson, Acting Executive Officer


CHAIR BERRIEN: Good morning. Good morning, if you could take your seats, we're ready to call the meeting to order. Thanks everyone for being here this morning. In accordance with the Sunshine Act, today's meeting is open to public observation of the Commission's deliberations and voting.

At this time I'm going to ask Bernadette Wilson to announce any notation votes that have taken place since our last Commission meeting. Ms. Wilson.

MS. WILSON: Good morning. And before I begin, is there anyone in need of sign language interpreter services?

(No audible response.)

MS. WILSON: Okay. Good morning again, Madam Chair, Commissioners, General Counsel, Legal Counsel. Today's meeting record will reflect that this is Commissioner Yang's first open Commission meeting. (applause) And 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 the right and left, as you exit this room. Additionally, the rest rooms are down the hall to the right and left of the elevators.

During the period May 8th, 2013, through November 12th, 2013, the Commission acted on forty-five (45) items by notation vote:

Approved Litigation on eleven (11) cases and Disapproved Litigation on one (1) case;

Approved Amicus Participation in four (4) cases;

Approved FY 2013 Budget Allocations for State and Local Programs;

Approved the FOIA Final Rule; Approved a Final Rule Amending EEOC's Regulations Regarding Designations of Fair Employment Practice Agencies;

Approved Arbitrator Services in the Union's Fair Labor Standards Act Grievance against the Commission;

Approved four (4) Subpoena Determinations; Approved an Interagency Agreement with the Administrative Conference of the United States for a Study of, and Recommendations for the Structure and Organizational Placement of, EEOC Administrative Judges;

Approved a Request to Close the July 10th, 2013, Commission Meeting;

Approved two Federal Sector decisions; Approved the Federal Sector Compliment Plan;

Approved the Following Contracts: Expert Services to Support Litigation in two cases; Public Access to Court Electronic Records, PACER services; a Labor Hour Contract for Industrial, Organizational Psychologist Services; a Contract through the SBA 8-A Program for Headquarters Facilities and Support Services; Technology Support for Strategic Plan Performance Measure 13, Improving the Private Sector Charge Processing; Delivery Order for Design, Graphics and Production Services; and Office of Communications and Legislative Affairs Online News and Legislative Tracking System;

Approved the Task Order to Manage the Commission's Office of Worker's Compensation Program;

Approved the EEOC's Applicant Data Collection Form, Amended;

Disapproved the Fall 2013 Regulatory Agenda; and Approved the Fall 2013 Regulatory Agenda amended;

Approved a Letter in Support of Ratification of the Convention on the Rights of Persons with Disabilities; and,

Approved Resolutions Honoring Olophius E. Perry and Levi M. Morrow on their Retirement.

Madam Chair?

CHAIR BERRIEN: Thank you, Ms. Wilson.

Before we begin our meeting topics today, I'd like to ask if we could just pause for a moment of silence to reflect on the tragedy and hardships suffered by the people of the Philippines in the wake of Typhoon Haiyan.

(Moment of silence.)

CHAIR BERRIEN: Thank you. The United States State Department is directing those who would like to assist with the relief effort to the mGive Foundations Philippines Typhoon Disaster Relief Fund. For more information, you can visit their website, which is Our hearts and our thoughts are with them.

Welcome and thanks to my fellow Commissioners, to all EEOC staff, to members of the public and media representatives who are here with us in the Commission meeting room in Washington, and to those who are watching online.

This is our first public meeting of Fiscal Year 2014, and our first Commission meeting since the government shutdown. So, I'd like to take a moment to thank the entire staff of the EEOC for your very hard work in Fiscal Year 2013 and your continuing commitment to serving the people of the United States. Thank you.

I also extend a special thanks to our distinguished panel of speakers for participating in today's Commission meeting and contributing to our discussion on the important subject of National Origin Discrimination in Today's Workplace. You're an exceptional group of practitioners and advocates, and we greatly appreciate your presence with us today, and the time that it took for you to join us. So, thank you all very much.

And finally, I'd like to thank and acknowledge my colleague, Commissioner Jenny Yang, who as you heard earlier, is participating in her first public Commission meeting today, and has wasted no time jumping right in. I'm grateful for the very hard work that she and her staff have put into organizing today's meeting. I've had the pleasure of working closely with her in this and we are certainly well served by her participation and presence and membership on the Commission. So, thank you, Commissioner. And thank you to your staff, particularly to Antoinette Eates and Peach Soltis, who are with you now. And to Wes Katahira who was on detail when you first arrived. So, thank you all very much.

I'd like to actually, in recognition of both this being your first meeting, but also your involvement in planning today's meeting, I'd like to trade places for the day and ask Commissioner Yang to take the opening spot that I would ordinarily take. And then we'll follow, in order, with Commissioner Barker, Commissioner Feldblum, Commissioner Lipnic and I will close.

So, again, I thank you, Commissioner Yang, for your leadership in today's meeting. And I ask you to open our discussion of the subject, National Origin Discrimination in Today's Workplace.

COMMISSIONER YANG: Well, thank you, Chair Berrien. I'll turn on my mic. Thank you, Chair Berrien, for inviting me to work with you on planning this meeting. It is really exciting to have my first meeting on the subject of National Origin Discrimination. This is an area that I have worked on throughout my career, and I am confident that our esteemed panel of witnesses will provide important information to inform the Commission's work.

I thank the Chair and my fellow Commissioners for recognizing how important this area of work is to the Commission.

And I see many familiar faces in the audience, from other sister agencies and others who I've worked with throughout my career. So, I thank you for taking the time to join us today.

Last year, as many of you know, the Commission adopted a Strategic Enforcement Plan. And we identified, as a national priority area, protecting immigrant, migrant and other vulnerable workers. Although National Origin Discrimination can impact a broad spectrum of workers, including individuals whose families have been in the country for generations, it does have a particular impact on the immigrant workforce.

Through this meeting I would also like to hear about how national origin discrimination impacts two of our other national priority areas, which are eliminating discriminatory barriers to recruitment and hiring, and preventing harassment through systemic enforcement and outreach.

My parents immigrated to this country from China over 50 years ago, because of the promise of opportunity in America. Our country has thrived, in large part, because of the talents and energy that immigrants have brought to our economy. More than 40 percent of Fortune 500 companies were founded by immigrants or children of immigrants. Small businesses owned by immigrants employed 4.7 million people in 2007.

Ensuring that our workplaces are free from national origin discrimination is an important part of the promise of this nation.

The Commission last updated our Compliance Manual on National Origin Discrimination in 2002. Over the past decade, as you'll hear today, the labor force in the United States has undergone substantial demographic changes, including significant increases from Latin America and Asia, in particular, as well as from a diversity of regions, including the Caribbean and Africa. And as the workforce continues to change, Title VII's protection against national origin discrimination has become increasingly important.

The EEOC has worked hard to respond to these changing demographics. In Fiscal Year 2012 the EEOC achieved $37 million in monetary benefits through the administrative process, on behalf of charging parties alleging national origin discrimination. The Commission has had nearly 90 pending or resolved lawsuits involving national origin discrimination or immigrant workers from 2005 to the present.

Harassment remains one of the most common claims raised in national origin charges, constituting more than half of all charges filed in Fiscal Year 2011.

For nearly 50 years, Title VII has prohibited discrimination based on national origin. But it is an area that is not as well understood as other areas of the law. It can manifest itself as unfavorable treatment, because of someone's place of origin. This can include a country, a region or even an ethnicity within a country. It can also be directed towards characteristics associated with a national origin group, such as appearance, accent, language or culture.

For example, hiring discrimination can result where a selecting official concludes that an applicant appears ethnic or wouldn't fit in with its all-American image. These subtle concepts of unfamiliarity or otherness, can lead to discrimination and job segregation, based on national origin.

At the same time, managing an increasingly multi-lingual, multi-ethnic workforce can present challenges for businesses, especially small businesses. Like the one owned by my husband's parents. They emigrated here from Korea and ran a small grocery store in the Bronx that served the Caribbean community. And they, like many other small businesses, did not have the resources to hire outside counsel or human resources professionals to advise them on these evolving areas of the law.

As an enforcement agency it is vitally important for us to understand how our workplaces are evolving, so that we can adapt our strategies to meet the changing needs of those we serve.

I am very interested in hearing today about how we can enhance the Agency's enforcement and outreach efforts, where additional guidance may be helpful to clarify the law and what kinds of best practices can be used to prevent discrimination based on national origin.

In closing, I'd like to thank each of our distinguished witnesses for joining us today to share your experiences and for taking the time to submit your thoughtful written testimony.

I would also like to thank General Counsel David Lopez and Lucy Rosas who have led EEOC's Immigrant Worker Team and all those at the Agency who have contributed to this meeting.

Thank you, Madam Chair.

CHAIR BERRIEN: Thank you, Commissioner.

And Commissioner Barker.

COMMISSIONER BARKER: Thank you, Madam Chair. And I would like to start off by expressing, as the Chair did, my appreciation to Commissioner Yang, because she lends such a new voice and a new perspective to the Commission and I think that today's meeting will be -- will particularly demonstrate that.

This is an issue that has been a concern of mine, particularly my focus has been on the Latino population, and more particularly with the Latino girls, particularly migrant workers who are often in positions where they feel like they are required to submit to sexual advances in the worksite.

Your topic, Commissioner Yang, is much broader and I'm so pleased that you have brought it forward, because as you pointed out, we are a nation of very changing demographics, as the witnesses will testify to. You know, and it's sad to me that, you know, you hear about there are a number of countries now that are very, like, of a single culture, single nationality, that are dealing with discrimination against immigrants, sort of for the first time. And here we are, we are 200 plus years old, we are a nation of immigrants, and yet 200 plus years later we still discriminate against immigrants. So what is wrong with this picture?

So, I think it's particularly appropriate that we focus on this problem. And particularly, as you pointed out, with the fast-growing Asian population and the fast-growing Latino population. So, this is -- I very much look forward to the testimonies from all the witnesses today and thank you, as the Chair did, and as Commissioner Yang did, for taking the time and going to the trouble to testify.

And I particularly want to recognize, there are a number of people in the audience today who are, whether or not you are testifying, are advocates of various ethnic, national origin, immigrant groups. And I want to particularly show my appreciation to you, whether or not you are recognized today. Thank you very much.

CHAIR BERRIEN: Thank you, Commissioner Barker.

Commissioner Feldblum.

COMMISSIONER FELDBLUM: Thank you, Madam Chair. So, I also want to thank Commissioner Yang for putting together this meeting. I appreciated that you called and said, you know, "What suggestions do you have?" And I basically said, "You know this area. The one thing I care about is I'd like to hear from equal numbers of employers and employees advocates, just that I think will make it helpful." And so I really appreciate that that happened.

And I'm very much looking forward to the witnesses. I'm not going to take time with an opening statement on this, I want to hear from you.

I do want to make a comment, it's interesting about the Sunshine Act, you know, as you heard, does require us to deliberate in public, which is something that applies to only independent agencies. I mean, the Department of Justice, Department of Education doesn't have to deliberate in public, but the Sunshine Act applies to multi-member Commissions.

As you saw, we approved 45 items by notation vote, which is of course one way in which independent agencies and other Commissions sometimes deal with the fact that we are -- have these limitations with the Sunshine Act.

But in the interest of sunshine, I do want to note that I voted against one piece of litigation during this time period that I felt was not a useful use of the Agency resources, that I voted against the Interagency Agreement with the Administrative Conference on the Study of the Structure of Administrative Judges, because I felt we had enough information already and it would delay the reorganization that we had put into the Strategic Enforcement Plan.

And I initially voted against the 2013 Regulatory Agenda, because it did not include something about our federal sector regulations and now there will be something, at least an advanced notice of proposed rulemaking.

So, in the spirit of the Sunshine Act I just wanted to say that.

I am thrilled that we are looking at some of these issues. Again, as a child of an immigrant, who never felt that, you know, we sort of just were happy that we were living in a country that actually wasn't going to kill us, as Jews, literally that's how we felt, as the daughter of a Holocaust survivor, that was the feeling. I'm really thrilled that we are trying, in this country, to actually integrate, incorporate, really take in people who have come from other countries and not end up discriminating against them because of various other items.

So, I'm really glad we're having this meeting. Thank you.

CHAIR BERRIEN: Thank you, Commissioner Feldblum.

Commissioner Lipnic.

COMMISSIONER LIPNIC: Thank you Madam Chair. Welcome to our witnesses, we certainly appreciate your taking the time to share your experience and your expertise with us today. And I especially want to thank Commissioner Yang and her staff for taking the lead on organizing this meeting today and on this topic. And welcome, Commissioner Yang, to her first open Commission meeting.

We're here to examine protections in the law against discrimination based on workers' national origin. As the Commission's Compliance Manual appropriately notes, by including national origin in Title VII, with race, color, religion and sex, Congress made an important recognition. No matter an individual's ancestry, heritage or cultural background, he or she is entitled to the same employment opportunities as anyone else.

Alongside this commitment I think we all agree, as the Commission's guidance also notes, and this was something I actually talked about at our confirmation hearing three years ago, the pluralism of American society is part of what makes this nation great. It benefits our economy, too.

As we have previously observed, the diversity of background, experience and opinion in the American workforce allows employers to draw talent and ideas from all segments of the population and potentially gain a competitive advantage in the increasingly global economy. We made those recognitions in a 1998 report, and they remain true today.

Of course, the fundamental principle of equal employment opportunity, when applied day-to-day in the workplace, often raises numerous and sometimes complicated issues. For example, recent census data suggests that over 300 languages are spoken in the United States, some 59 million people speak a language other than English at home, and a growing number speak no English at all. When this manifests in a workplace, employers and employees may confront national origin issues related to workers' accents and language fluency and the intersection of anti-discrimination law with employer's policies, which require employees to use English in conducting some or all aspects of the company's business. These are highly complicated and nuanced issues, to say the least, and I welcome our panelists' perspectives on them.

More broadly, with respect to this morning's hearing, it has been suggested that our 2002 Policy Guidance on National Origin Discrimination merits updating and revising. I look forward to a robust discussion of whether our guidance in fact needs revision and if so, how it might best be revised. What's changed since we issued the current guidance in 2002, especially in terms of substantive areas of the law? Are there specific areas of existing guidance that are not working or have fallen out of date? What new issues have come to light? Have there been developments in related areas of the law that warrant our attention?

The answers to each of these questions, I think, bears directly on whether and how we may wish to address our guidance in this area going forward. Given the number of regulatory and sub-regulatory matters that may or should be in our queue for updating, I will say that the definitive case has not yet been made to me as to whether and why guidance in this area should be prioritized over a number of other worthy initiatives. But I certainly approach the question with an open mind this morning and look forward to the testimony and to help enlighten us on this issue.

So again, thanks to our witnesses. Welcome. I look forward to your testimony and again, thanks to Commissioner Yang and her staff for putting this Commission meeting together this morning. I yield back my time.

CHAIR BERRIEN: Thank you, Commissioner Lipnic.

The demographic make-up of the United States population has changed dramatically in the 21st century, resulting in an increasingly diverse, multicultural workforce across the country.

When the EEOC opened its doors nearly 50 years ago, many parts of the country were demographically homogeneous and a relatively small number of businesses operated on the scale commonplace in many sectors of today's global economy.

In light of these changes, today's examination of national origin discrimination will help to ensure that the EEOC effectively advances its mission of stopping and remedying national origin discrimination in the very ways that it occurs in today's workplace.

As General Counsel Lopez and Lucila Rosas will discuss in the first panel, EEOC's Immigrant Worker Team has been instrumental in enhancing the Agency's ability to address national origin discrimination. I would like to thank the General Counsel and Ms. Rosas for their leadership of the Immigrant Worker Team, and all members of the Immigrant Worker Team for their dedicated and productive work on these issues.

The work of the IWT, which began under the leadership of our former colleague, Stuart Ishimaru, is not only important in its own right, but also because it served as a model of cross-Agency collaboration, which helped to inform the development of the Strategic Enforcement Plan, approved by the Commission in December, 2012.

The protection of immigrant, migrant and other vulnerable workers is one of the six SEP priorities. This meeting will provide the Commission with the opportunity to examine how to further our efforts to address this priority, through outreach, public education and strategic law enforcement. In closing, I'd like to again thank all of our panelists for their participation in today's meeting and the time you've spent developing and presenting your testimony to us today.

I also acknowledge, again, Commissioner Yang and her team, Antoinette Eates, Wes Katahira and Peach Soltis. And I'd like to acknowledge the members of my staff who worked with them to organize today's meeting, particularly Colleen Hampton-Lyster, Muslima Lewis and Patrick Patterson.

Thank you for your efforts and we are now ready to move to our first panel. Today's meeting consists of two panels. We'll hear from both panels before opening the floor for questions and comments from members of the Commission.

Panelists, as you know, you have a limited amount of time to make oral presentations today, but your complete written statements will be available on our website,, and will be a part of the meeting record.

Please note that we're using the timing lights at the center of the console in front of me. The yellow light will appear when you have one minute remaining for your statement. And the red light will appear when your allotted time has expired.

The first panel consists of our General Counsel, David Lopez, who has led the Agency's Immigrant Worker Team since 2011 and Lucila, Lucy, Rosas, an Administrative Judge in the Denver Field Office, who has served as Lead Coordinator of the EEOC Immigrant Worker Team since 2010.

General Counsel Lopez will briefly discuss the work of the Immigrant Worker team, and introduce Ms. Rosas. And Ms. Rosas will provide an overview of EEOC's extensive work in the area of national origin discrimination. Thank you both, again, for your leadership in this area.

General Counsel.

GENERAL COUNSEL LOPEZ: Thank you Chair Berrien, thank you Commissioners for convening this important meeting about the challenges and opportunities the Commission faces in addressing the changing demographics of this country.

Last year the EEOC hosted a lunchtime presentation in this room by Isabel Wilkerson, author of The Warmth Of Many Suns, a powerful historical examination of the great migration. During this presentation the author observed that the African-Americans who fled the Jim Crow South to a better life, shared with migrants throughout history, the heartbreaking risk and anguish involved with leaving behind, sometimes forever, family and other loved ones, in the hope of obtaining greater freedom and opportunity on some distant shore, be it Angel Island, Ellis Island or Chicago.

This poignant observation resonated with the audience and brought tears to the eyes of many, because it recognized that the universal truth that migration to seek a better life for you and your family is as old as humanity. In this sense, we are all dreamers.

Of course we know that not all countries have been created equal in the realization of these dreams for a better life. The belief that this country provides exceptional opportunity and freedom for migrants has drawn people for centuries. Many arrive fleeing war, persecution. All arrive sharing a strong faith in the American dream and their adopted countries. These workers, as Commissioner Yang pointed out, have continued to make important contributions to the prosperity of this country.

Harassment and discrimination, however, can slowly undermine these dreams and squelch this powerful drive and initiative that makes people risk everything to contribute to this country, of all countries on Earth. For this reason, I applaud the Commission for setting forth in its Strategic Enforcement Plan, as a top priority, the protection of immigrant, migrant and other vulnerable workers.

This priority recognizes that we have not done our job as a law enforcement agency, if we do not respond to changing demographics of this country, and if we do not combat discrimination against those who live and work in the shadows and who are often vulnerable to some of the most egregious discriminatory abuses. And thank you, Commissioner Barker, for putting the spotlight on sexual harassment of immigrant women.

In 2010, during my first Regional Attorney conference in New York City, I convened a work group composed of many Regional Attorneys to examine the challenges faced by the District Offices in addressing national origin discrimination and immigration-related employment discrimination, and how the Commission might best address them.

Out of this work group emerged the outlines of the Immigrant Worker Team. We will discuss this today. This includes the recognition that these issues, the issues affecting the immigrant community, needed to be addressed across Agency functions, outside of the silos. This cross-functional approach was borrowed, in part, from the Commission's work post 9/11, and is now a central tenet of the EEOC's Strategic Enforcement Plan.

In the Summer of 2011, Chair Berrien established the Immigrant Worker Team and designated Stuart Ishimaru to lead the team. After Commissioner Ishimaru's departure from the EEOC, the Chair asked me to lead the IWT.

The Immigrant Worker Team is comprised of approximately 25 EEOC staff members in all programs across the Agency, with expertise and interest in discrimination issues affecting the immigrant community. The main objective of the team is to function as an ongoing resource for the EEOC to address the issues affecting workers of foreign national origin, including issues related to human trafficking, migrant workers and immigrant workers.

Let me talk about one critical component of this effort. When we were developing the work plan for the group, Commissioner Ishimaru asked me if I had any recommendations as to who might provide the leadership to coordinate the daily activities of this group. While the Commission has many passionate advocates focusing on these issues, there is one above all that I recommended, Lucy Rosas, who at that time and is still an Administrative Judge in our Denver office.

Now let me take the point of privilege of bragging a little bit about Lucy, because she won't brag about herself. I met Lucy when we were both trial attorneys in Phoenix, and we forged our bond, interestingly enough, in a national origin/religious discrimination trial involving a Muslim man from Morocco. We won. (laughter) She is the epitome of public service, and always, always places the mission of the Agency first.

Our Regional Attorney in San Francisco recruited Lucy from Lideres Campesinas, an organization -- a farm worker advocacy organization in California. Lucy spent several years as a trial attorney in both San Francisco and Phoenix, now she is on detail with my office, but her resources are for the Commission as a whole.

As coordinator, Lucy worked with internal stakeholders across the various offices on a wide variety of projects that transcends the various program areas: investigations, policy, outreach, interagency coordination. Lucy also works with dozens of stakeholders, external stakeholders, many of whom are in the room, on issues involving the varied immigrant communities in this country.

Of course, on good days, when I'm lucky, I'm even able to draw on her judgment and tenacity as a former litigator to work through various problems we encounter in our cases around the country.

Thanks to Lucy's extraordinary efforts, each day this Agency becomes smarter and a more effective law enforcement Agency. Thank you, Lucy.

CHAIR BERRIEN: Thank you, General Counsel.

MS. ROSAS: Thank you, General Counsel Lopez. Good morning --

CHAIR BERRIEN: We'll turn to you now, Lucy.

MS. ROSAS: Oh, I'm sorry.


MS. ROSAS: I apologize. Good morning, Madam Chair, Commissioners. It's a great honor to be here today to address you on the topic of national origin discrimination.

I will be providing you a brief overview of the Commission's accomplishments on this issue and its work on behalf of immigrant workers. But first, I will provide you background on recent demographic changes in the United States that have led to a shift in the EEOC's national enforcement priorities.

The workforce the EEOC is charged to protect has undergone profound changes. Not only has the labor force grown from 73 million to over 155 million workers, it has also become much more diverse. As of 2010, 33 percent of the civilian workforce was minority. During that same time period, approximately 50 percent of the total minority population spoke a language other than English.

The foreign-born population also increased during this time period, with immigrants from Asia and Latin America accounting for the largest percentages of recent immigrants in the U.S.

With the changing demographics, also came a shift in the migration stream of these populations. In the last decade there were 13 states whose immigrant population growth was more than twice the national average. These states included Alabama, South Carolina, Tennessee and Arkansas.

These changing demographics are reflected in the national origin discrimination charges filed with the EEOC. Approximately 11 percent of private sector charges filed between Fiscal Year 2002 and Fiscal year 2012 alleged at least one basis of national origin discrimination. During this ten year period, Hispanics filed more charges of national origin discrimination than any other group, averaging 43 percent. During that same period, the percentage of national origin charges filed by Asians increased from 3 percent to 9 percent.

The charge data also shows that charging parties who file national origin claims also allege intersectional discrimination. For example, Hispanics charging parties alleged gender as an additional basis, while Middle Eastern charging parties allege religious discrimination in more than 30 percent of their charges.

Similar trends are reflected in the national origin discrimination charge data for the federal sector and are described in more detail in my written submission.

The EEOC's national enforcement priorities have been influenced by these trends. The Commission's Strategic Enforcement Plan identifies six national priorities, among them, protecting immigrant, migrant and other vulnerable workers. The Commission recognizes that this priority is vital to fulfilling its mission and reaching these populations. The EEOC's Limited English Proficiency Plan sets forth the EEOC's activities for ensuring that individuals with limited English proficiency can meaningfully access our services. The EEOC employs several hundred bilingual employees who conduct intake interviews in various languages. Each District Office has identified language assistance officers who facilitate the provision of language assistance to the public.

The Commission has also created a Spanish language version of its public website and posted EEO information in seven different languages. This past year the EEOC launched a Twitter account to post news about the EEOC for Spanish speakers.

As the General Counsel mentioned, the Immigrant Worker Team has been evaluating the Commission's programs as they relate to issues affecting immigrants and other vulnerable workers. The team has been instrumental in providing guidance to Agency leadership on these issues. It has also made recommendations regarding internal training needs for staff and contributed to recommendations to make the EEOC's U-Visa certifying procedures more efficient. The team has worked with external stakeholders to identify areas of collaboration and has worked on strengthening the EEOC's relationship with other federal agencies in order to maximize resources as they relate to national origin discrimination issues.

With respect to its litigation, the Commission has been successful in resolving national origin discrimination cases in industries such as agriculture, healthcare, service sector and manufacturing.

(Automated message regarding conference call.)

MS. ROSAS: These include the case against Delano Regional Medical Center where the EEOC alleged that Filipino-American hospital workers were subjected to harassment and discipline, when speaking with an accent and speaking in Tagalog. The EEOC partnered with the Asian Pacific American Legal Center to litigate this case.

It also includes the case against Mesa Systems where the EEOC alleged that Hispanics and Asian/Pacific Islander employees were subjected to derogatory slurs and a restrictive language policy based on their national origin.

And also, the case against Fremont Toyota where the EEOC alleged that a class of Afghani-American salesmen were subjected to threats and called "terrorists."

Another issue that arises in the context of national origin discrimination is human trafficking. When force, fraud or coercion is used to exploit workers, traffickers and employers may be violating anti-discrimination laws, such as Title VII. The conduct may rise to the level of national origin discrimination, as in some of the cases litigated by the EEOC on behalf of trafficking victims.

With respect to its outreach efforts, the EEOC staff is proactive about educating the public regarding their rights and responsibilities under EEO laws. In the past fiscal year the EEOC staff participated in over 1,600 events nationwide, targeting immigrant, migrant and other vulnerable workers, and reached approximately 105,000 stakeholders. Several of those events were conducted in a language other than English and covered the topic of national origin discrimination. EEOC staff trained employer groups, such as the U.S. Poultry and Ag Association and the Agricultural Growers Association.

All of the District Offices participated in Labor Rights Week in partnership with the Mexican Consulates and disseminated EEO information in Spanish. Additionally, EEOC staff has participated in various anti-human trafficking task forces and has trained stakeholders on this issue.

In light of the White House Initiative on Asian-American and Pacific Islanders, the Commission has developed a strategic plan to reach out to the AAPI community and ensure access to our services.

As you can see, the Commission has made significant strides in addressing the issues that arise from national origin discrimination. Our meeting today comes at an opportune time, given the rapid changes in the ethnic makeup of America's workforce. The Commission remains committed to meeting the new challenges that lie ahead and welcomes the input from today's speakers and stakeholders on this issue.

Thank you for the opportunity to speak to you today.

CHAIR BERRIEN: Thank you, Ms. Rosas.

And now I'll ask our second panel to please come up to the front table and as you are relocating, we'll place some signs so that everyone is aware of who is participating in the panel.

And I will just remind you, as you're moving, that each of you have seven minutes for opening statements, and your written statements will be reproduced in full, as part of the meeting record.

Thank you, and welcome to all of you. As I was saying, you each have seven minutes for your opening statements. Your written statements will be provided in full or available in full on the EEOC website,, and will also become a part of the meeting record, together with your complete bios.

You are a very distinguished panel and we look forward to hearing your contributions to today's discussion. Please remember that the timing lights with be used. The yellow light will signal that you have one minute remaining and the red light will signal the end of your allotted time. The Commissioners' questions and comments will begin after all of you have completed your opening statements.

So it's my pleasure to introduce and welcome all of you. We have first, Thomas Saenz, President and General Counsel of the Mexican American Legal Defense and Education Fund; Michael J. Eastman, Senior Counsel and Vice President for Public Policy of the Equal Employment Advisory Council; Laboni Hoq, the Litigation Director at Asian Americans Advancing Justice - Los Angeles, also known as Advancing Justice - LA; Elizabeth Torphy-Donzella, a partner in the law firm of Shawe Rosenthal; Rebecca Smith, Deputy Director of the National Employment Law Project or NELP; and Douglas Farmer, shareholder in the law firm of Ogletree, Deakins, Nash, Smoak & Stewart.

Welcome to all of you. And we will begin with Mr. Saenz.

MR. SAENZ: Thank you. Good morning, Madam Chair and Commissioners. And thank you for this opportunity to address the nation's critical need to focus upon ensuring a fair and non-discriminatory workplace for the increasing number of workers who are national origin minorities.

As you've heard, my name is Thomas Saenz, I'm President and General Counsel of MALDEF, the Mexican American Legal Defense and Educational Fund, a national civil rights legal organization headquartered in Los Angeles, that has been around for 45 years. And in those 45 years, among the efforts that we have sustained are a focus on employment discrimination litigation. Over our 45 year history, MALDEF has represented, in class action and individual litigation, tens, if not hundreds, of thousands of employees; in most cases, raising claims of national origin discrimination, among other violations of protected worker rights.

What we have learned through that experience is detailed in the written testimony that you have before you. Today in my oral testimony I want to emphasize a few things that I think are relatively new developments.

As a way of background, in the written testimony I describe the struggles of the Latino community in fitting its experiences in the workplace and throughout society in pre-existing frameworks of legal protections. This has resulted in widespread experiences of discrimination by proxy, where rather than engaging in discrimination, labeled national origin, employers, as well as other discriminators, have often used other elements related to national origin, such as language, such as immigration status, or assumed immigration status, as a basis for discriminating against national origin workers.

This experience of struggling with the legal system and fitting that experience into existing -- pre-existing frameworks, has resulted, I believe, in an ongoing problem of discrimination on multiple bases, which I think has already been referred to as intersectional discrimination.

And we have seen, increasingly in the cases that come to MALDEF, in a situation where a worker is facing both discrimination, we believe, on the basis of their national origin, that they are Latino, coupled with discrimination on other bases that coincide with that. So, recently, for example, we have represented immigrant workers who are Latino who are also gay, who are also HIV positive. And in taking on those cases, obviously some of those characteristics are fully protected by federal law, some of them not yet fully protected by federal law. But in taking on those cases, we concluded that the discrimination that the workers were experiencing was based on each of those bases, was really a combination of each of those characteristics working together to result in discrimination. That's an issue that I hope you will take up as you move forward in this important area.

The other issue is one that has actually been around for quite some time. And it relates to the problem of job segregation, particularly as service industry employment increases in the United States. And that is, we increasingly see a pattern where Latino workers are segregated to back office, non-public contact positions and prevented from moving to public contact positions.

What this means, for example, in the hotel industry it means that Latinos tend to be employed as maids, as maintenance people, but not at the front desk, not interacting with the public. In restaurants, they tend to be employed in the kitchen, as dishwashers, sometimes as bussers, but not as public contact servers or as hosts.

You can imagine how this plays out in other elements of the service industry and I wanted to highlight one case that MALDEF, together with the EEOC, was involved in about ten years ago. It involved the well-known retailer Abercrombie and Fitch. The case was initiated by MALDEF because a Latino employee came to us and explained what had happened to him. He had been employed at an Abercrombie and Fitch store until headquarters personnel came to visit the store and advised the manager there to make some changes in the pattern of employment. As a result, he was moved to a back store position and ultimately his hours were zeroed out.

What we found, based on that initial feedback, through further investigation and cooperation with others in the civil rights community, as well as I mentioned with the EEOC, was a pattern where the retailer was pursuing an image, an All American image that was both promoted and enforced through the models that were used in its advertising.

And as a result, it was seeking a workforce that reflected the models depicted in its advertising, with the end result that national origin minority workers, as well as racial minority workers, and indeed, as we ultimately found out, women were regularly experiencing discrimination.

And in this particular circumstance, the store's pursuit of an image meant that its national origin minority workers, to the extent they were employed at all, were confined to working in the stockroom, were not allowed to interact with the public.

This is a pattern that we see more and more in restaurants and stores and hotels, as I mentioned, with the growth of the service industry employment in our economy. It is a pattern that is disturbing, both because there are tangible effects of that job segregation, in that public contact positions in many of these industries have higher pay, higher opportunities for promotion, higher opportunities for other benefits accruing to the employee, that are not experienced by those who are in non-public contact, back office, back store positions.

But even where there is not a tangible difference in the employment benefits experienced by those in public contact versus non-public contact positions, there are obvious effects on society when employers are allowed to pursue a pattern that says certain minority workers are not allowed to have contact with the public, though they can certainly be employed in doing some of the supportive work in the back of the restaurant, in the back of the store. That creates multiple problems in the future for the growing Latino workforce.

And so, I would end with explaining the critical importance of addressing these issues by reminding the Commission of the data that now works, but shortly will become out of date. And that is the relatively well known sequence 1 in 6, 1 in 5, 1 in 4. Today in 2013, 1 in 6 Americans is Latino, but a measure of the future workforce is in the other two numbers, 1 in 5 of public school students, kindergarten through 12th grade, nationwide, today is Latino, 1 in 4 nationwide of children of preschool age, younger than five is Latino. 1 in 6, 1 in 5, 1 in 4 explains how critically important it is to address these issues, given the increasing proportion of the workforce that will be made up by national origin minority Latino workers. Thank you.

CHAIR BERRIEN: Thank you Mr. Saenz.

Mr. Eastman.

MR. EASTMAN: Good morning and thank you Chair Berrien and Commissioners. Commissioner Yang, it's great to meet you for the first time and great to see the rest of you again. And thank you, again, for the opportunity to be here to discuss national origin discrimination issues.

I'm here today representing the Equal Employment Advisory Council, EEAC is a trade association of about 300 major employers in the United States and around the world. Our membership is dedicated to the development and advancement of practical and effective programs for the elimination of employment discrimination.

I want to summarize my remarks and just touch on a few areas that EEOC may wish to look at, should you decide to revise the Compliance Manual or other guidance focusing on national origin discrimination.

And the first recommendation we would have, should you proceed in this area, is to first include in the Compliance Manual a discussion of the legal principles that frame the document. By contrast, the more recently updated chapter on race and color discrimination begins with a discussion of many of the legal principles.

I think this is best -- the problem here is best illustrated by an example, and I'll refer both to the Compliance Manual and to the, what's sometimes referred to as the procedural regulations, the regulations codified at Section 1606.7 that discuss language issues.

These regulations first discuss English-only rules and they say that if an employer were to have a broad English-only rule, requiring individuals to speak English all the time, that would presumptively violate Title VII. Then there's a section about rules that are not as broad, rules that may require speaking English in certain circumstances and it says that may be appropriate if the employer can show business necessity.

Now business necessity is a term very closely tied with disparate impact, right? But disparate impact is not mentioned in either the procedural regulations or the Compliance Manual. We think it's important that the Commission articulate which theory of discrimination that it's looking at in the Guidance. Are we talking disparate impact? Are we talking disparate treatment? Are we talking hostile work environment? Or is something else at play? All of these legal principles frame the entire analysis of how an employer might look at these issues. So, I'd encourage you to look at that area.

Now the next area I would suggest looking at is recruitment and assignment. Okay, now, the current Compliance Manual says very little about recruitment, right, just a few short paragraphs. Let's consider a hypothetical employer, and this is an employer, very large employer with lots of entry level positions. In these particular positions, English language proficiency is not required, right? This employer may find that it has a great many applicants who are immigrants, maybe refugees, people who don't speak English at all, or maybe very little.

If this employer were to examine its selection rates, by national origin group, it might find some statistical disparities. It might find, for example, that one national origin group had much higher selection rates than another group. This could be for any number of reasons. This could be because employees from one community more aggressively recruited their friends and neighbors to come work for this employer. It could be because the employer has a relationship with a community group, maybe a nonprofit refugee services group, recruiting high numbers of individuals from one community. There could be a lot of different reasons.

And the point I'm making here is this employer, attempting to hire a diverse and inclusive workforce could have statistical disparities that raise disparate impact issues. And this employer may want some guideposts to help it navigate Title VII, right? "I'm trying to do the right thing, trying to be inclusive, the numbers may raise concerns. What should I be doing about it? What can I do to minimize the risk?"

Similarly, in looking at language issues, let's consider the same hypothetical, the same employer. Maybe that employer has individuals that speak 20 or 30 languages spoken as a principal language. That raises all kinds of issues in the workplace, just simply, well first from just the application stage, interviewing, information -- conveying information about work duties, supervising. You might find that the work groups also tend to be -- show disparities, statistical disparities based on national origin group.

Now, obviously the employer cannot assign individuals based on national origin to different groups or shifts, right? But what if those statistical disparities occurred because of employee choice, right? What if employees self-select themselves into particular shifts, for various other reasons? Let's say you have -- you examine the workforce and you find that you have a large population of Somali refugees who want to work on a particular shift, right? It turns out they all live in the same housing complex, 20 miles away, and they have limited transportation options. They want to share rides, share the commute. This is probably not a disparate impact issue, but it may raise concerns for that employer and they need to learn how to navigate that road. So, that's the kind of guidance I think we'd like to see a little bit more of in this section.

In terms of harassment, clearly the existing Compliance Manual says that this is one of the biggest areas of concern, the Commission receives a lot of charges. We've heard, already today, there's a lot of litigation in this area. I will tell you that EEAC members already have strong anti-harassment programs, they understand the importance of effective complaint processes and investigations. This is not news to them, you know, the issue of whether employers should do this training is not a matter of debate.

The question is, what kind of guidance can we provide to them to make that training more effective, right? What are the successful strategies that employers can use to deal with the stereotypes that people bring to the workplace, right, that the employees bring to the workplace? What's successful? And I think we would like an ongoing discussion about how to better develop that.

I see my time's nearly over. Let me just end by welcoming an ongoing dialogue in this area. We hope we can be productive and help you to enhance the guidance on national origin discrimination. Thank you.

CHAIR BERRIEN: Thank you Mr. Eastman.

Ms. Hoq.

MS. HOQ: Thank you, Madam Chair. Good morning everybody. My name is Laboni Hoq. I am the Litigation Director of Asian Americans Advancing Justice, Los Angeles. Our former name is Asian Pacific American Legal Center.

We, together with our affiliate organizations in San Francisco, Chicago and here in Washington, D.C., have been advocating for the rights of national origin minority communities for over 30 years. I thank you for the opportunity to speak to you today about what the EEOC can do to ensure that their rights are preserved and enhanced, as we go forward into this century.

Though there are many issues that I could cover today, I'd like to speak to you about two issues that we think warrant special attention from the EEOC today. The first is about the importance of understanding and addressing national origin discrimination together with intersecting grounds of discrimination, including race and religion. And the second is the rise of language discrimination.

These issues are important because in the past several years we have seen, among the communities that we serve, an increase in the disparate treatment and harassment on account of cultural and ethnic attributes, bilingualism, English language proficiency and accents.

As a result, we believe the EEOC should reassess whether its Compliance Manual adequately addresses these issues to ensure that Title VII's protections are fully realized.

Despite the fact that our workforces are becoming increasingly multicultural, many workplaces fail to appreciate the value of this increased diversity. For example, among the fast growing Asian American populations that we serve, there are over 20 national origin groups represented, as well as multiple distinct language, religious and ethnic groups. These communities bring their varied talents to the workplace. But rather than embracing these realities, we have seen a trend amongst employers to artificially suppress this diversity through, for example, restrictions on religious and cultural attire and the imposition of restrictive English-only policies.

In particular, we have seen Arab, Muslim, Middle Eastern and South Asian communities suffer backlash for their perceived associations with the 9/11 attacks, even ten years after the fact. We have also seen suspicions arise against Chinese Americans, at a time when anxieties have been rising about the "rise of China" and what that means for America's competitiveness.

Importantly, these trends have persisted since the EEOC last revised its Compliance Manual in 2002. As such, the time is right for the EEOC to revisit the Compliance Manual. Specifically, the EEOC should update its Compliance Manual to identify and explain potential situations where one might expect to find intersecting grounds of discrimination. It should also train investigators to identify and investigate all protected grounds of discrimination and amend charges to include additional grounds where appropriate.

While we acknowledge the increased diversity in the workplace, it does bring with it real challenges. We believe the EEOC must play a role in helping employers address these challenges in ways that does not infringe on workers' rights or unfairly exclude workers who could make a meaningful contribution to the economy.

With respect to language discrimination, we have seen a steady rise in English-only policies at the workplace. In our experience, such policies must be carefully scrutinized, in light of their tendency to create hostile work environments for bilingual and limited English proficient workers.

While the EEOC's guidelines on speak- English-only policies provides some useful guidance on when English-only policies may violate the law, the EEOC can do more by expressly incorporating these guidelines into its Compliance Manual. Further the Manual should affirm the EEOC's determination that the existence of an English-only policy can create a hostile work environment, regardless of an employee's ability to comply with it. The Manual should also caution against imposing even limited English-only policies where the policy's not justified by a legitimate business necessity, which in addition, is supported by sufficient facts and evidence. Anecdotal, hypothetical and "common sense justifications" for such policies can amount to pretext for unlawful discrimination.

Recently, my organization prosecuted a language discrimination case, together with the EEOC's Los Angeles office, on behalf of a group of Filipino American employees at a hospital in Delano, a city in California's Central Valley.

That case involved, purportedly, limited English-only policy that in many ways was a textbook case for why employers should think long and hard before imposing such policies, especially when they are overly restrictive and have tenuous business justifications.

In that case, the hospital enforced an English-only policy after one complaint from a hospital visitor and purely hypothetical concerns about patient care. On paper the Delano policy stated that it did not apply when employees were on their breaks or when they were otherwise not on duty. But in reality it was different. The hospital management convened a meeting of only Filipino staff to explore the -- to explain the consequences of violating the policy, and then they distributed an all-staff memo reminding employees that everyone had to "do their part" to ensure that the policy was followed.

The staff then proceeded to single out Filipino American employees as targets of the policy, even though it was not limited to those employees. On several occasions Filipino American staff with heavier accents were taunted about failing to speak English, even when they were, in fact, speaking English. In one especially demeaning interaction, a co-worker sprayed air freshener on the ethnic food of a Filipino employee.

While some might see the Delano case as an extreme case, it is not hard to see how the existence of such policies can create what the EEOC has termed an atmosphere of inferiority, isolation and intimidation, even when they are not applied at all times.

The EEOC should also expressly state that a bilingual employee's ability to comply with an English-only policy should not be a basis to uphold such policies.

In this respect, a growing body of sociolinguistic research has shown that bilingual employees have the involuntary tendency to switch back and forth between English and their dominant language. This is a phenomenon known as code-switching, where there is, as I mentioned, a growing body of research backing this up. Some of my clients in Delano routinely engaged in code-switching, as do my parents, and probably many of your parents.

The EEOC, in its speak English-only guidelines acknowledges this phenomenon. It should go further, expressly stating that ability to comply cannot be a basis to uphold an English-only policy, especially in response to cases like Garcia v. Spun Steak, which failed to credit this growing body of scientific research that I spoke about, requiring one set of employees to suppress an essential trait of their identity, simply because they may have the ability to do so, goes against some of the most basic principles of anti-discrimination law. After all, that African Americans could sit in the back of the bus was no justification for forcing them to accept that demeaning position.

Thank you very much for the opportunity.


Ms. Torphy-Donzella.

MS. TORPHY-DONZELLA: Good morning Chair Berrien, and Chair Yang and the rest of you. Thank you very much for permitting me to participate in your forum today.

I am here as a practicing employment lawyer. I defend employers when they're sued for discrimination claims, and I've defended a fair number of national origin discrimination claims. I represent both large employers and small employers, so I see the spectrum of my clients' problems and their difficulties in complying with the law.

I hope today to provide you with some insight, as a practicing lawyer, in how these cases are generated and how employers address and respond to them. One thing I learned early on in my practice is that employers, for the most part, try to do the right thing. There certainly are predatory employers, but most employers are struggling to do right by their employees and to obey the law. But the law, and particularly in this area, is not always clear.

A theme I think you're hearing over and over again is the one area that's difficult to comply with, and unclear is the area of language, the English-only rule cases.

And the first case I want to talk about is a case I did defend, it was brought by one of your very able trial attorneys on behalf of some Hispanic employees who claimed that their employer did not permit them to speak Spanish, harassed them and castigated them when they did so. And they also alleged that slurs were used to refer to them, based upon their Hispanic national origin.

Now, in all of the cases I've defended, there's always two sides to every story and my clients did not agree with their characterization. They did require them to speak English in certain contexts, including when using the two-way radio, they were maintenance people, and the manager felt that he needed to understand what was being said over the radio, so he could monitor performance and make sure the people were doing their jobs.

As to the national origin slurs, unfortunately it was one of those workplaces that I've seen too often and that is where the Hispanic workers called their manager a redneck and he thought he had license to do the same with them. And that's not a good idea. And when I do training for my clients, I always sensitize them to the fact that you live in a world wider than your small world, and you must be conscious of what you do.

Ultimately, this was a small employer, very small and the prospect of incurring large legal bills generated a settlement with the EEOC.

The main lesson that was learned from this lawsuit, I think, is that the area of English-only is very difficult to navigate, and it's one that I think needs to be addressed more clearly in the EEOC's Guidance. In many cases, you know, Speak English rules are not used as a subterfuge to exclude anyone from the workplace, they're used as a means to facilitate communication within the workplace. Certainly we understand that language and national origin coincide and that there is, as the guidelines currently recognize, there are -- a primary language is a distinct part of your national origin.

And the EEOC Guidance offers that you may permit people to speak their own language, in limited context, and speak English elsewhere. But what is an appropriate balance between speaking English and not speaking English is not entirely clear. The Guidance provides examples that frankly are easy cases. You know, the hospital operating room. Everyone knows that a doctor and a scrub nurse need to speak the same language. But it would be more helpful to have more concrete examples of where the lines should be drawn. You know, communications with co-workers and supervisors, those are communications obviously that have to be in the same language. And communications on break do not. But we really could benefit from more guidance in that area.

With respect to, you know, customers' preferences, customer comfort, I understand what Laboni has said about bilingual employees' code-switching, but frankly my clients have a hard time understanding why people who are capable of speaking English, who are bilingual, should have the right to do so, speak their own language in the workplace.

The case of EEOC v. Sephora, which was a case litigated by the EEOC, was one in which employees were asked on the sales floor to speak English so that customers would be comfortable. The EEOC took the position that because of this code-switching, that was unlawful discrimination and the court, frankly, disagreed. And the courts are in disagreement with the EEOC's position on English-only rules. The court held that customers may well have a right to expect English to be spoken when they're present and that requiring bilingual employees to speak English was not an unnecessary burden. So, I think the EEOC needs to be mindful of the court view on this as well.

Another EEOC lawsuit I defended involved a Nigerian employee who was -- spoke with a heavy accent. His claim was that he was not promoted to a manager position because the only available manager positions were in rural areas and his employer claims that no one would be able to understand him outside of the D.C. Metro area, and that, he said, limited his ability to be promoted.

Again, there are two sides to every story. My client had a different explanation and that was that it was a performance issue that limited his performance. But, the lesson I learned from that is that accent cases are very difficult for employers, because what is an -- what constitutes an accent that makes a person difficult to understand is something that can really only be decided in the context, in litigation, of a jury. You know, you're right if the jury concludes that the person is not understandable, and you're wrong if they conclude that it's not. And that's a very difficult position for an employer to be in, quite frankly.

And so, it would be helpful if the EEOC were to provide more guidance on that area as well, for employers, how an employer can assess whether it is making the right call with respect to an accent case.

I see my time is almost up, so I appreciate your time today and wish you luck in working on this very difficult area.


Ms. Smith.

MS. SMITH: Good morning, Chair Berrien and Commissioners. And thank you so much for the opportunity to talk to you today about National Origin Discrimination. My practice, for now over 30 years, has been working with immigrant workers to ensure that they can enforce labor standards in a climate that's free from fear and it's from that perspective that I will talk today.

As Commissioner Yang has mentioned, we know that national origin discrimination and national origin protection is much broader than simply immigrant workers, and covers ancestry and speech and other things, but this is what I know and what I will talk to you about today.

I think this hearing comes at a very critical point in our nation's history, frankly. In addition to some of the contextual statements about changing demographics, I would add a couple of things. And Mr. Saenz mentioned this earlier, increasingly the jobs that are being created in our economy are low wage jobs and these are jobs that are often held by immigrant workers. So, of the jobs that are projected to increase in the next 10 or 20 years, those include home health, childcare, food preparation and service, materials moving, these are all jobs in which immigrant workers are over-represented.

And the second thing that I would say is that sooner or later we are going to have immigration reform in our country. Many of us hope that that will be sooner. But that means that some 11 million workers will be learning English and have more access to job training and will be looking for more opportunities and career ladders. And I think that has some implication for the Commission, to ensure that those opportunities remain available to workers on a nondiscriminatory basis.

So I'll focus a little less on the Guidance itself than on kind of this larger context of immigrant workers in our country. And the first is on recruitment. I've included some examples of recruitment practices, focused on the guest worker program, in my comments. And I just would want to say that while this is, by means the only place that discriminatory recruitment practices occur, I do suggest that the EEOC continue to work with advocates to hone their policies and their litigation around recruitment and the guest worker programs, especially as that continues for workers who are then present in our country.

The second is on occupational segregation, and Mr. Saenz spoke about this as well. Some experts say that the American workforce is now more segregated than it ever has been, and associate occupational segregation with poor working conditions and deteriorating pay. And that's why I think the Commission needs to be looking, as well, closely at occupational segregation, and especially at workplaces where one job category is exclusively or almost exclusively filled by workers of a particular national origin minority, which I think raises a presumption of discrimination that of course can be overcome by employer evidence.

Second -- or third, actually, joint employment. Many of the jobs that we are talking about, that are held by workers, are also enterprises that use labor intermediaries, increasingly in janitorial, warehousing, home healthcare, landscaping, agriculture, hospitality and on and on, workers are employed by a temp agency or a staffing agency and a worksite employer. And I would encourage the Commission to revisit its policy, as well, on joint employment and unpack that a little bit and update it to ensure that your policies are in keeping with new job structures and also with the latest legal developments under the NLRA and the Fair Labor Standards Act and other statutes.

Finally, the issue of retaliation, the EEOC has seen retaliation complaints skyrocket in recent years and I think that's no wonder. The available data indicates that retaliation is a very common response of employers to employee complaints and left unchecked it has huge consequences for all workers, but especially for immigrant workers, especially those who are unauthorized or are here on temporary visas, and those who associate with them, under the Thompson case.

The ability of an employer to deport away a problem employee amounts to a license to discriminate. And it creates a workplace-wide climate of fear for other workers as well. And beyond that, I think that retaliation has major consequences for the Commission's ability to do its work and enforce Title VII and carry out its Strategic Enforcement Plan to protect the most vulnerable.

Here I have some recommendations that I think are quite modest. I think that the EEOC could incorporate, in its practice, a caution to employers whenever a charge is filed, about retaliation. And of course, retaliation occurs in many different contexts, but my focus is on immigrant workers.

I think the EEOC could have a policy about rapid response to retaliation where as soon as it hears of retaliation, employers are contacted and urged to reverse that retaliatory conduct. And of course the EEOC can continue to issue visas or certify visas, U-visas for immigrant workers who are victims of retaliation.

These are suggestions that come from my own practice, my own experience but also some of my observations of practices from other agencies that have worked to combat retaliation.

I want to just end by applauding the tremendous efforts that the Commission has made to- date on behalf of immigrant workers and say that I just offer these comments to reinforce that work and to strengthen that good work. And I thank you and look forward to this conversation today.


And finally, Mr. Farmer, who, I'm sorry, I should mention in addition to being affiliated with Ogletree Deakins now is an EEOC alum, a former Trial Attorney. So, welcome back to the EEOC.

MR. FARMER: Thank you, Chair Berrien, Commissioners. It is a pleasure and an honor to be here today to talk about the very important topic of national origin discrimination.

For those of you who I've not had the opportunity to meet personally, my name is Douglas Farmer and I'm a shareholder at the law firm of Ogletree Deakins and I practice in San Francisco.

I began my career as a Trial Attorney for the Equal Employment Opportunity Commission where I had the pleasure, in 1992, of arguing the case of Garcia v. Spun Steak at the district court level. I'm pleased to report that we were successful in upholding the Commission's English-only regulations back then, only to have that case go on to the Ninth Circuit, and to have that court take issue with the court's -- I'm sorry, with the Commission's current EEOC English-only guidelines.

Later in my career, after moving into the private sector, I was retained by the parties in a case called EEOC v. Tanimura and Antle to create a Spanish language training program that would be used as part of that consent decree, to train approximately 10,000 migrant workers. The Commission, at that time, had settled the case, it was a sexual harassment case involving a hostile work environment and quid pro quo harassment involving migrant worker women. That Spanish language training program was used throughout the southwest at Tanimura to provide training to workers on complaint procedures to more effectively remedy some of the issues that were going on in that company.

That training program was subsequently used, through me and other associates at my law firm, to train approximately 100,000 workers, I think, to date, not English-speaking and limited English speaking workers, to date on anti-discrimination policies and employer anti-discrimination policies and procedures.

We have all heard today about the fairly dramatic demographic shift in both with respect to foreign workers and the use of foreign languages in the workplace. I think one of the most astounding numbers that I have heard recently is a California statistic that comes from the census, that shows that 43 percent of people in California currently speak a language other than English at home. While many of us may think that that's confined to the Southwest, it's not the case. The states of New York, New Jersey, Texas, Nevada, Arizona are all reporting that anywhere between 25 percent to one-third of individuals in those states speak a language other than English in their homes.

In May of 2000 the Bureau of Labor Statistics reported that there are now 25 million foreign-born persons in the United States labor force. Hispanics make up about 50 percent of those, Asians make up another 25 percent. I think what has become apparent to anyone working in human resources and for employers is that these changes have placed significant pressure on traditional English language models for preventing discrimination and harassment.

Many of us know, as we guide employers through some of these difficult laws, that it's very important to have anti-discrimination policies and trainings in place. We spend a lot of time with our English-language speaking clients developing those policies and practices. Unfortunately for 25 million foreign-born workers, many of whom are limited English proficient, the first point of contact to resolve concerns about discrimination harassment is usually not the EEOC and usually not a state FEP Agency, it's often a personnel manager or an onsite supervisor who they have to approach to address their concerns.

Over the course of the last 25 years of my practice I've had the opportunity to review dozens of Spanish language anti-discrimination and anti-harassment policies. I typically review these for our clients in order to ensure that the Spanish language version of those policies accurately state the law and accurately reflect the English language version of those policies. And over the years I've found a number of deficiencies in those policies.

Number one, and probably the most frequent deficiency in those policies we are finding, is the translation is cost prohibitive. We find that particularly for Asian languages where there's a market at a higher cost for employers to obtain translation for languages such as Vietnamese or Mandarin or Hmong often result in complaint procedures not being adopted or only being distributed in the English language, which makes those complaint procedures often ineffective for employees.

Number two, the translation or the quality of those translations often render those policies ineffective. Smaller employers rarely go out and hire expensive translators; they will pass off their policies and training programs, if they do any, to friends and family members or perhaps support staff. You will rarely get, when you review those policies, effective translations of the meaning of essential concepts such as quid pro quo harassment or hostile work environment.

Smaller employers often have to deal with literacy issues as well. Even if a policy is translated correctly, literacy issues preclude effective implementation.

We're also hearing, as some of our other panelists have addressed, from our clients that upwards of 60 languages, 60 plus languages can be spoken in a workplace. We've got several clients with those issues, making it difficult to enforce or implement anti-discrimination and anti-harassment policies.

So what can the Commission do to help? Well, number one, to the extent that the Commission can adopt model anti-discrimination or anti-harassment policies, I think many of our small employers would welcome that. Certainly the Vincent case has been around for more than 30 years, Faragher and Ellerth have taught us a lot, including subsequent case law on what we need to have to make complaint procedures effective. The Commission could develop those model policies, distribute them by way of the Internet and make them available to a broad range of employers, in multiple languages.

Second, it's been a number of years now that we can -- those of us using the Internet can download video in volume. And to the extent that the Commission could post training programs, either by way of PowerPoint or by way of video, for employers to download, we think that that would be helpful for employers.

California law, as many of you know, regulates the content of anti-discrimination law training programs. To the extent the Commission is looking for model policies or model requirements for the content of those policies, California can certainly help in that regard.

We look forward to an ongoing dialogue with you, to the extent you have any further questions, I'd be happy to talk more about those issues. Thank you.

CHAIR BERRIEN: Thank you. Thank you to the entire panel.

And also, for the question and comment period, Panel 2 and Panel 1 are united. So, thank you as well, Ms. Rosas, for joining this panel for the question and comment period.

We are going to do two rounds of questions and comments today. Each Commissioner is allotted six minutes per round, a total of 30 minutes for the round. And we will also use our timing lights.

So, we'd like to turn now to the first round of questions and comments and begin with Commissioner Barker.

COMMISSIONER BARKER: I'd just like to thank all the panelists for your insight and your insight from a lot of different perspectives that I think is so very helpful.

I really don't have any questions other than to tell you that I've learned a tremendous amount by reading your testimonies and by listening to what -- you know, the additional information you provided today. Thank you very much.

CHAIR BERRIEN: Thank you. Commissioner Feldblum.

COMMISSIONER FELDBLUM: Thank you. So, first Mr. Saenz. Is that the right way to pronounce it?

MR. SAENZ: Saenz.

COMMISSIONER FELDBLUM: Saenz, and Ms. Smith, your reputations precede you, I've heard about you for years. It's truly an honor to have heard from you today. Mr. Eastman, always good to see you again. And I'm delighted to have made the acquaintance of Ms. Hoq, Ms. Torphy-Donzella and Mr. Farmer. Both of your written and your oral testimony have been excellent, so thank you very much. And of course, the Immigrant Workers Group, as you heard, has been really a model for us, was a model when we were looking at some of the issues in the Strategic Enforcement Plan.

I'd like to dig down a little deeper into the occupational segregation issue and just within my six minutes, to open it up to you. I mean, it's not a new problem, right, when you look at the pay disparity between men and women, a lot of that is due to occupational segregation. We hear a lot of the same things, self-selection, word of mouth, you know, this is how -- we know, obviously, and we have some cases where it is explicitly, "Oh, you're a woman. You go here. A man, you go there." But that's not really -- I don't know if it's the norm or not, but it's certainly more complicated than just that, right?

So, my question to you is what can the EEOC do in terms of dealing with this occupational segregation issue? And I open up and Mr. Saenz, you can start?

MR. SAENZ: Thank you, Commissioner. I think that the EEOC needs to directly address the issue of customer preference, which often comes under other guises. The whole notion of pursuing an image, for example, is actually a secondary way of saying, "We think we are responding to what customers will in turn respond to," and that then results in segregation or outright hiring discrimination, as in the case that I described.

And I think the EEOC needs to recognize that customer preference, which is in itself an illegitimate basis for these kinds of activities, is usually not scientific, it's based on people's assumptions about what the general public wants today. And that, in turn, can be influenced by what the debate -- public policy debate of the moment may be.

So, I think it would be safe to conclude that right now, when we have lots of discussion on the nightly news and otherwise about immigration, whether that's about federal reform or about what states and localities are doing, and much of that coverage relates to stereotypes about immigration, I think it influences employers' considerations of what customer preferences might be, particularly if they're pursuing an image that is "All American," for example.

Second, I think the EEOC --

COMMISSIONER FELDBLUM: I'm going to -- okay, you should -- because I do want to hear from -- and I've got a time limit.

MR. SAENZ: I can very quickly. I think --


MR. SAENZ: -- the EEOC needs to directly address how language relates to this. Some of what we see is that non-public contact employees are not allowed to move into public contact employment because of assumptions about their level of fluency and assumptions that are not well supported or documented about what level of English language fluency is required for the public contact position.

So, a busser might not be allowed to become a server because of assumptions about his fluency, and assumptions, unsupported, about what level of fluency is required to successfully be a server.


Mr. Eastman?

MR. EASTMAN: Sure. I think what I tried to illustrate in my remarks was that there is a difference between an employer that may be trying to use language or national origin issues to limit people, and those that are trying to be inclusive and nevertheless run into challenges with statistical disparities, and how can they navigate those challenges. And I think that's going to be something that's going to take a lot of time for us to work through.

One thing I do want to say, though, is a lot of these issues we talk about with national origin discrimination relate to, you know, we've heard the word "proxy" used or characteristics that may strongly relate to national origin or may not. And in that way, it's a little bit different from looking, I think, at race and sex discrimination, which are immutable characteristics, right? We're looking at something which when you start looking at proxies, you're -- it's almost like an age discrimination case where sometimes it may be related to the job duty and sometimes it may not be.

And that's a real important difference here. With language, sometimes it will be directly related to the job duty and sometimes it won't be related at all, and that's a really fact-intensive issue.


MS. HOQ: Thank you, Commissioner Feldblum. I guess I would just reiterate, as Mr. Saenz mentioned, is this concept of customer preference and really kind of through the guidelines giving everybody, employers, employees, you know, a good sense of what this actually looks like, so that they can actually root it out.

We deal a lot with situations with language issues. We're representing a group of Hmong workers in Fresno, at a casino, where there is very limited, you know, just talking, actually, when you're a poker dealer. But the employer there was insisting on a language proficiency associated with that job position and was excluding Hmong dealers from certain high profile special event tournaments, because they didn't fit that image, you know, ostensibly because of language issues, but, you know, I think that bled into things like look policies and, you know, just a corporate image that you're trying to present to the public.

And so, you know, I think education would be a very good start with the Compliance Manual, in terms of providing really good, real world examples of what this looks like so that people understand it and again, just reinforcing it that way.

MS. FELDBLUM: You might have the last word, Ms. Torphy-Donzella.

MS. TORPHY-DONZELLA: Well, I think Mr. Eastman raises very good points and that is that job segregation sometimes happens for non-discriminatory reasons and sometimes the barriers to advancement also happen for issues associated with legitimate language requirements. And, you know, there are positions for which English language proficiency is necessary.

I was talking to someone yesterday who was sharing with me that she was trying to turn in her rental car at the Los Angeles airport and the person who she was working with had very limited English proficiency. And she said, you know, "I understand this is a job that may not need that necessarily, but it sure was a hard process." And for companies that are dealing with customer service, that hard process can create economic consequences.

CHAIR BERRIEN: We will have a second round.

COMMISSIONER FELDBLUM: Right. And you can just --

CHAIR BERRIEN: So, you can pick up then.

COMMISSIONER FELDBLUM: -- add your answers to someone else's question.

CHAIR BERRIEN: Or if someone else has -- wants to follow up, they can.

Commissioner Lipnic.

COMMISIONER LIPNIC: Thank you, Madam Chair and again, thank you to all of our witnesses for your excellent testimony.

So, just to follow up a little bit on this customer preference issue. And I'm curious, so I'll start with you, Ms. Torphy-Donzella. If you had -- you mentioned in your testimony the issue of nursing homes. And I don't even know if we're calling that customer preference there, but the patient preference, I guess, right, and safety concerns. So, I'm curious what -- in defending a case like that, and if you have to put on a business necessity defense, what are you saying?

And then I'm interested in, Mr. Saenz, your response to that and Mr. Eastman.

MS. TORPHY-DONZELLA: Well, those are very difficult cases. You know, my client --

COMMISSIONER LIPNIC: Right. You don't want to get in front of a jury.

MS. TORPHY-DONZELLA: You don't want to get in front of a jury, or maybe you do if Grandma's in the nursing home.

COMMISSIONER LIPNIC: Well, your client --


COMMISSIONER LIPNIC: -- doesn't want to be in front of a jury. We want to have this resolved before that ever gets to that point, right?

MS. TORPHY-DONZELLA: Right. Yes. But the difficulty is we've had several cases in which you have elderly employees with dementia and they -- their social skills and ability to reason are obviously eroded. And some of them -- like, we had a case in which a Muslim woman, wearing a scarf, was really disturbing to a woman with dementia. And, you know, the struggle was, do we reassign her, do we not retain her? Because this person thought the Angel of Death was coming to get her, and that was her true reaction. And this is where people are in the end of their lives.

And so, those are difficult customer preference cases to deal with. And, you know, the EEOC has some guidance on, you know, if a discriminatory customer in a nursing home doesn't want their mother taken care of by a Black person, surely we would never honor that customer preference. But what if the patient, who's irrationally fearful, I can't tell you how we resolve that, but we would really appreciate more guidance; because there are customer preferences that are not based on an intent by the employer to discriminate, but an intent to accommodate people in very difficult circumstances.

MR. SAENZ: I would say that patient preference is obviously the most difficult circumstance that there is, but in most cases that's not involved. But in that case I would say you want to have well-documented, and insist that the employer document very well that there is a very real patient well-being issue and that it cannot be addressed in a nondiscriminatory fashion, because in most cases it can be addressed in a non-discriminatory fashion that does not involve any impact on the employee, in terms of language.

And the last comment I would make, similarly I think that when these issues tie to language fluency, what level of fluency is required, I think that the EEOC should make clear that employers have to document and clearly, clearly demonstrate the level of English fluency that's required.

Because English fluency is not just an ordinal on or off. There are different levels of fluency that are required for different positions and employers ought to carefully document and detail what level is required and whether it's met by the employee.

COMMISSIONER LIPNIC: So, Mr. Eastman, do your member companies do that, in terms of proficiency?

MR. EASTMAN: Well, I think the issue is incredibly fact-intensive, right? And that's one of the challenges with it, and who bears the burden in demonstrating that. Is it sufficient to make an employment decision based on some number of complaints from customers, that they can't understand an employee? Do you want to have something in the job description? Ideally certainly for your -- when your EEOC investigation comes around you'd like to have something that says an essential function of this job is being able to communicate clearly with a particular group.

But, you know, it's such a range. You're exactly right, there's a whole range of fluency and what is appropriate in one job may be not appropriate and unacceptable in another. So, that's the challenge they deal with.

COMMISSIONER LIPNIC: And Mr. Farmer, I'll ask you to comment on that, too.

MR. FARMER: Here we go. I think one of the issues that our clients have struggled with in this area are both state and federal regulations, competing regulations governing nursing facilities and long-term care facilities. If you take a look, for example, at a Department of Health and Human Services regulation, 42 CFR 483.15, that talks about the obligation on the part of the employer to treat residents of long-term care nursing facilities with dignity and respect.

Agency surveyors, these are the individuals who are appointed to go into the facilities and monitor them, in effect audit them for compliance, issue guidelines or utilize guidelines that define dignity to mean, and this was a quote from their guidelines, "to include not excluding residents from conversations or discussing residents in community settings." In other words, carrying on a conversation that the resident cannot or the patient cannot participate in.

These are the very real regulations that our clients struggle with. We can't be in a position -- our clients cannot be in a position where we're operating facilities where we're not providing that dignity and respect. We've had a number of clients who have been audited, who have been cited, in California, for the use of foreign language in front of clients or patients.

And so these are very real regulations and very real competing issues that we have to deal with. To the extent the Commission can sort through those and strike the appropriate balance, that would be helpful to our clients.

COMMISSIONER LIPNIC: Well, I see my time expired. Darn it, I had another question.

CHAIR BERRIEN: You'll be ready for the second round.


CHAIR BERRIEN: Commissioner Yang?

COMMISSIONER YANG: Thank you to this panel for just some really extraordinary testimony. I think your remarks today really highlight how complex a lot of these issues are.

One of the areas I wanted to follow up on is the issue of harassment. I was struck, since joining the Agency, how prevalent this issue remains, and particularly in the context of national origin discrimination.

Mr. Eastman talked about how his members of the EEAC have strong anti-harassment policies. Mr. Farmer talked about how you have made great strides in translating those policies to a multi-lingual workforce, but yet we continue to see these problems in the workforce.

I was interested in hearing about what you think, why does the harassment still continue and why is it so prevalent? What can employers do to prevent it? And what can we, as an Agency, do to more effectively enforce the law in this area and increase our outreach? And I know we don't have time to address all of those, so feel free to address which of those you think you can answer most effectively.

And I'd like to start with Mr. Farmer, given your experience on this issue. And then maybe turn to Mr. Saenz, if we have some time to hear from you, and others who we have time for as well.

MR. FARMER: Well, I think one of the struggles that our clients have faced over the years has been a workforce that is largely not educated in the United States, does not bring with it experience with anti-discrimination training, the issuance of and receipt of anti-discrimination policies, and may often come from workforces in other countries where some of the harassment practices or discrimination practices are prevalent, and indeed institutionalized in the labor force.

Once those folks arrive and we have communication difficulties, in terms of translated policies, effective training programs that are rolled out to those folks, to the extent those present difficulties and they can't be implemented, we're seeing many of those practices transport into the United States labor market and it has become a significant challenge for us.

I think by the same token, you've got a number of potential victims in those situations, which are completely unaware -- who are completely unaware of complaint procedures, completely unaware of how you make a complaint of discrimination and the lack of those policies that -- translated into languages that employees can understand that can facilitate those.

What can the EEOC do? I think I've spent some time with that. You know, a portal on your website with downloadable policies in multiple languages, including some of the less common Asian languages would be very helpful for small businesses. The ability to have a downloadable training session in multiple languages, where business owners -- small business owners -- don't have to parse through the difficulties of communicating some of the concepts that we communicate in the English language, would be very helpful as well.

Borrowing from some other agencies, the United States Department of Labor has a wonderful OSHA website which makes a lot of tools, courses, policies, slide decks -- PowerPoint slide decks -- available for employers. Many of those are models that the EEOC might be able to use for reaching out to employers who are working with multi-lingual workforces.

COMMISSIONER YANG: Thank you. Mr. Saenz?

MR. SAENZ: Yeah, and I know that Ms. Smith would have a strong perspective on this, but I believe that it begins with recognizing that the workplace is dynamic and it is therefore responsive to what's going on in society. So, certainly we have seen that when there is activity going on that may target immigrants in various ways, including activity by state and local government, that somehow folks conclude that that means that similar behavior can occur in the workplace and that sometimes leads to harassment based upon folks' assumptions about immigration status or how recently, you know, generationally their family was an immigrant, and denigrating those who may be denigrated on the news, because of that public debate, not recognizing that what may be legitimate and complicated, when it's done by government, does not mean that it can have any place in the workforce. I think that's critical recognition and acknowledging that dynamism and incorporating what the EEOC does I think is critical.

COMMISSIONER YANG: Thank you. Ms. Smith, can we also hear from you?

MS. SMITH: I am just sort of echoing what Mr. Saenz has said, but I liken this a bit to the dynamic of post 9/11 and anti-Arab and anti-Muslim sentiment. Hopefully we are in the waning days of very aggressive anti-immigrant sentiment at the state and the federal level, but I think that is a climate that has created sort of an open season, often, on immigrant workers.

And I sympathize with employers who need to counteract that climate in the workforce and I think training is the answer.

I also agree with Mr. Farmer that making sure that workers in a workplace know of complaint procedures, both internally and via the EEOC, and in a language that they can understand can be helpful.

COMMISSIONER YANG: Thank you very much. And I might be out of time, but Mr. Eastman, do you have anything to add?

MR. EASTMAN: I agree with a lot of what's been said. You know, clearly it's not enough to have a policy, it has to be effective. And that's the challenge, oftentimes, when you have communication issues and language issues.

COMMISSIONER YANG: Thank you all very much.

CHAIR BERRIEN: Thank you. In preparation for this meeting, one of the things I looked at was the transcript from a meeting that the Commission conducted following the terrorist attacks in September of 2011 and there was some very very compelling information, both about how effectively, I believe, the Commission responded -- and response is almost not the right word, it really was very in front of the possibility of backlash and workplace discrimination emerging in the wake of those attacks.

And I noticed, among other things, that one of the -- some of the testimony was submitted by EEAC about some of the best practices that had emerged during that period. And that's certainly a part of the equation in dealing with workplace discrimination is not only the Commission's effectiveness in providing clear guidance or addressing situations as they arise, and as we must in the enforcement context, but also being as effective as possible with prevention.

So, in that vein, I would like to ask really all of the panel, anyone in the panel who would like to weigh in, in your practice or in your advocacy experience, and your work with communities across the country, what do you find to be effective, in terms of our outreach, our ability to describe and discuss, define what the law requires? And particularly with a focus on what may help to prevent or more effectively prevent acts of discrimination on the basis of national origin from occurring.

MS. TORPHY-DONZELLA: I'll weigh in here just to say that your Policy Guidances are very important and they're very useful tools. One of the reasons I wanted to participate was because I use them all the time with my clients, to help them understand the law. And I have to say the smaller Employer's Guide to the ADA, that is a great tool. It explains the law.

And I think tools like that, that break down the obligations into bite-size pieces that anyone can understand, are the most useful forms of prevention. You know, we give them to our clients and we use them as a basis for training.


MS. HOQ: Yeah, I just, as a litigator I guess I have a bias, but I feel like some of the interesting and cutting edge cases that have come out of your office in the last few years have been really, really I think very important for raising the profile of issues like backlash against individuals who are associated with the 9/11 attacks, English-only policies, people in more rural communities that don't have access to lawyers to litigate these cases on a private basis and I really do commend your reaching out to groups like ours to assist in that kind of litigation. We have cultural competencies that we can bring to this litigation and to really just raise the profile of these issues for the communities that we serve.

And so, I just applaud your bringing these cases and prioritizing the cases that affect very vulnerable communities.

CHAIR BERRIEN: Yes. Mr. Saenz?

MR. SAENZ: Yeah, I would just say, I think that it all comes down to familiarity and credibility. And I think that despite the very strong work the EEOC has done, there's still work to be done in terms of getting that credibility with the communities that we work with.

And some of that credibility does come from familiarity. So, in lots of contexts more and more folks are using, as an outreach mechanism, the promotora model where it's someone from the community who is trained in sort of a train-the-trainer model and then is then sent out to talk to their community, a community that they can relate to more directly. I think that's how you're going to reach the workforce and inform them about these issues and the options that they have available to them.

And the only other thing that I would add, and it's been mentioned already on this panel, we are all grappling, in what we do on a daily basis, with the new forms of social media and the fact that more and more of the younger workforce is more used to dealing with getting information from YouTube, getting information from Twitter and getting information in those formats, rather than in the traditional formats that those of us who are older, I can now say that with all this gray hair, we're used to dealing with in the past.

CHAIR BERRIEN: Thank you. Anyone else?

MR. FARMER: I think that's correct, from both the employer's perspective and the employee's perspective. In other words, trust and credibility is not just an issue for workers, but also one for the employer community.

For a number of years the EEOC did wonderful programs, technical assistance programs for employers. They invited defense counsel and plaintiff's counsel to speak at those programs. The seminars included very practical advice for employers on how to develop policies and prevention tools. You know, to the extent we can kick that up a notch and incorporate some of the issues we're talking about with respect to national origin, or perhaps focus on specific industries, like warehousing, like agriculture, like manufacturing, like the service industry, I think you'll go a long way to developing that credibility and trust that is that two-way street.

CHAIR BERRIEN: There's a small amount of time. In fact the TAPS Program is still underway. And I just want to ask Ms. Rosas if there's anything you would like to add about either specific outreach to immigrant communities or perhaps also the specific issue of how we're using our TAPS Program.

MS. ROSAS: Yes, thank you, Chair Berrien. Yes, we've continued to do the TAPS and have tried to make it more interactive and more, you know, role playing or real life scenarios. I believe our L.A. office and also in our Denver office we tackled the issue of National Origin Discrimination and accent and language fluency.

With respect to what Mr. Saenz has said, there are many innovative and, you know, committed program analysts throughout our country who do outreach and who work with communities like NELP and the Asian American Community and the Latino Community and we do try to do the concept of the promotoras or at least do -- not cultural competency but cross-training so that we're not just there -- the Commission's not just going to be there to train the community, but also we, as a staff are getting trained, in terms of what makes sense for them and how can we better serve them and building the credibility and building the trust. And I think a lot of our trial attorneys and our staff that works on those issues are really get reinvigorated when they have that opportunity. And they have been doing that work nationwide.

CHAIR BERRIEN: Thank you. And if there's any more that you'd like to add, we'll do that in a second round.

I want to thank you all. We are going to take a break for 15 minutes and then return. I have 11:30, so we'll resume at 11:45. Thank you very much.

(Off the record.)

CHAIR BERRIEN: Thank you all. And we are going to resume. We will begin with another round of questions. I think everyone's got the warning light system down. Thank you all so much.

And I will say, some of you who are in the audience may know this, but we're also marveling and very pleased about how much better our sound system and microphones are. So, I want to say a thank you to our AV and information technology folks who support these meetings. They're behind the scenes and in the background, but they do a whole lot to make sure that these meetings run smoothly, and they are responsible for us having much better sound this time around. So, thank you all for your hard work behind the scenes to make this meeting happen.

We will resume our meeting on National Origin Discrimination in Today's Workplace. And we're about to being round two of questions and comments from Commissioners.

And we will begin with Commissioner Barker.

COMMISSIONER BARKER: Thank you. Instead of a question I guess I really have a comment and that is, what I think from what I've read and from what I have learned from all your testimonies is that this is not a problem that is going to go away. And I do think that we have made some tremendous strides in particular lawsuits where there were horrendous situations that were addressed and with extraordinary effort by our program analysts to get out there and try to reach populations in ways that really go beyond our expectations of them as employees. And it's just really admirable.

But I think that, you know, you can't look at the dramatic changes that are ahead of us, not just the ones that, you know, have occurred, but the dramatic demographic changes that are ahead of us, you can't look at those without realizing this is just the beginning of what could be a very huge problem if we don't get ahead of it. So, I think, you know, one of the things, as a Commission, we need to look hard at is not just what we've accomplished and what the problem is today, but where we need to be projecting ourselves 20 years from now.

So, I guess my thought is someone attending this meeting 10 or 20 years from now, they'll see that this is the primary focus of the EEOC. This is our biggest challenge. And to that end, if any of you have any comments or suggestions of what we might do to get ahead of the situation, I would appreciate your insight.

MR. SAENZ: Thank you, Commissioner. I would just comment that I think it goes back to this issue of discrimination by proxy that I mentioned previously. It is an issue that we have to grapple with in the legal system, and it's not an easy issue, because there is an overlap, not always, but often there is an overlap between discriminatory impulses that are clearly proscribed and some of the activity that's on another basis.

I would give an example: we've talked a lot about language issues, but accent is not an issue we've talked about yet, and it is a significant concern where there is discrimination based on accent, in part because that is often tied to someone's conclusions about customers' comprehension. The problem is that customers' comprehension is in turn influenced by their own discriminatory preferences, which are in turn influenced by what's going on in the country today.

If there is, as we've talked about, a prevailing anti-immigrant impulse, then customers might be quicker to say, "I don't understand that person who has an X accent," whatever X is, based on the social context of the nation at the moment.

I think we have to grapple with issues like that, identify where there is an overlap with illegitimate discriminatory motivations and really try to root those out and find a way for the legal system to grapple with them.

There are legitimate issues of comprehension, but too often they overlap with customers' own biases that may be influenced by what's going on in the social context.

COMMISSIONER BARKER: Yeah, I think we need to realize, too, that a lot of what goes on in the workplace is a reflection of tensions out of the workplace. And so that's why I think that this is a problem that needs to not be handled in the legal system, it needs to be handled proactively.

And Ms. Smith, I'd be interested in any insight you might have, any suggestions of any changes we need to be making as a Commission, to that end.

MS. SMITH: I think this really just echoes what other folks have said, but I think the additional outreach and the trying to incorporate some of the aspects of the promotora system, which is training people in the community to train others, I think has been really effective ensuring that your own staff reflects the community and therefore has some initial rapport with the most vulnerable people that you're trying to reach, I think is useful.

And I guess the final thing I would say too, is that well I'm not going to say that.


COMMISSIONER BARKER: Well, let me just suggest one thing that I think that is a concern of mine, that I've heard reflected by some of our employees is that, you know, as a Commission we tend to be in tall buildings, in the middle of cities, our offices do and typically those are government buildings that are -- you know, maybe you have to go through security to even go through it.

So, one of the things I think we may want to consider, if GSA will let us consider this, is whether, you know, at least some of our employees, like program analysts, need to be located out where the populations they need to reach are. You know, do they need to be out in rural areas more, rather than in cities.

Ms. Rosas, do you have any thoughts along these lines?

MS. ROSAS: Yes. You know, coming from a farm worker background and having worked organizing farm workers throughout rural California, it's a huge challenge. You know, I think I visited -- I went as far up as Maxwell, California, which is like almost at the Oregon border, doing outreach, reaching out to farm worker battered women there. But, I think there are many staff on the field already who have that in them in terms of recognizing the only way you're going to reach this population is if you work past five o'clock and if you, you know, go on the weekends to these events, or wake up at five in the morning when the farm workers are about to go to work in the campesino day.

So, there are -- the problem, I think, is again because of the short staff, there's so many demands. And so while I want to go do that, you know, to get more cases or to educate at different communities or go talk to different organizations, I also have, you know, my day-to-day work. And so that's a balance I think that internally we need to help one another with. And sort of maybe take on the -- not request, but the -- you know, MALDEF and other organizations have said, "Come to us, you know, we'll help you build that bridge." And I think that's where we need to do that collaborative -- continue doing that collaborative work to reach these vulnerable populations.

COMMISSIONER BARKER: Thank you. My time is up.


Commissioner Feldblum.

COMMISSIONER FELDBLUM: Thank you. So, when I was in elementary school one of my friends told me that she really liked my dad but she couldn't understand him because of his accent. And I was like, "What accent?" I didn't hear any accent. And then like 30 years later, when I was listening to a video I'd taken of -- I'd done an oral history of him about his time during the Holocaust and this, and I'm listening to him, but someone else was listening with me and all of a sudden I, like, heard the accent. It is about expanding our understanding, you know?

All right, so I have -- my question is actually going to go to the complaint process. This was triggered by, Mr. Farmer, something you said. I was struck, as Commissioner Yang just noted she was, when I came on to the Commission of how much harassment was still going on. I mean, just beyond me, you know?

And that is why, I know it sort of gets lost in our Strategic Enforcement Plan, but harassment is the one substantive area where we note that we want to address it through targeted outreach, not just through the usual levers that we've been pulling, okay? And we're supposed to have a multi-year outreach and communication plan, which I certainly hope will have something creative, in terms of harassment.

But my question is -- and I actually wrote down, I've got five specific suggestions that you've all said about training. But I'd be curious about your suggestions about enhancing employers' internal complaint procedures. Is there anything EEOC can do to help that, because as you said, Mr. Farmer, that's often the first place that someone will go.

And in particular to think about the intersectionality issue at that point, like someone's a, you know, Hispanic woman, but she sort of feels like, "Okay, the Hispanic men aren't being, you know, harassed, but she is. But then other women aren't being --" you know, but to have her understand that she also can bring that complaint, that there is that, you know, practice.

So, ideas in terms of complaint procedures. And I'm just going to -- I do have, by the way, of the five, I had that you had us to create model complaint processes in different languages that could be downloaded.


COMMISSIONER FELDBLUM: But, anything else?

MR. FARMER: Well, I don't think you can look at any particular component of a complaint procedure in isolation. I think there are a number of components that have to work together, and if they don't work together you run the real risk of the process becoming ineffective.

I think the first place to start is probably where the new employee starts when they come to work for the company, which is the policy or the handbook that's placed in their hand.

I have spent countless hours working in combination with translators, you know, and my own Spanish language capabilities and human resources folks to try to adequately convey the legal message that the English language policy contains into Spanish and to make sure that that is an accurate translation for the worker.

We know now, post- Faragher and Ellerth and, you know, just a slew of cases, what the essential components, the critical components of a good anti-discrimination policy are. We know that they are a prohibition clause, a definition clause that goes into some detail on what quid pro quo harassment is, what hostile work environment means, concepts that are not intuitive to people who don't get that definition section. There has got to be a complaint procedure. There has got to be a provision that addresses retaliation. And the complaint procedure has to give the person, as we know from the Vincent case, many years ago, multiple avenues to complain. It's not just going to your immediate supervisor.

We know all of this stuff from the case law, you know it, the employers know it, but nobody has captured it in multiple languages, nobody has distilled it down to a two-page document that any employer can download now on the Internet.

I think once you move from that written document that the employee gets on day one, as part of the handbook and you effectively manage that in multiple languages; you then need to move to a series of trainings or a training program. Those training programs, as many employers know, have to be, or ordinarily are customized to employee trainings versus management trainings.

We know that employees need to hear about things like complaint procedures and how to make complaints. We know that management groups need to know about damages and individual liability and all the bad things that can happen to them if they don't participate effectively in these programs.

But if you're putting these programs together in a culturally sensitive way, you are able to, with native speakers you are able to communicate to those folks what they need to know and how to implement those procedures.

I've sat through dozens of these, you know, men and women will segregate in the training sessions, you know, the women will be over on this side of the room, the men over here, not because anybody's telling them to do it, but it's just the way that they're approaching the topic.

If you can adopt something very similar to what California has done, which are these ongoing trainings, two hours for management, I think you can do them in a culturally sensitive way that gets people in the door when they have to make complaints, and they understand their rights and responsibilities.

It is only within the last 36 months that we are able now to stream video in lengths of an hour or more. It's a great opportunity for the Commission now to make those available for download for businesses.


MS. SMITH: I think perhaps one thing that hasn't been mentioned is the impartiality of the complaint process. Inside a company I think it's very difficult for the HR person, or whoever's investigating to understand that their role, when a complaint is made, is to investigate the complaint and not to defend the company. A difficult task for employers, but one that needs to be carefully, carefully thought out and instruction given to the investigators that, "This is your job. At this point, this is your job."



Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you Madam Chair. Okay, I have a couple of questions.

So, Ms. Smith, I'll start with you. Two things that you mentioned that I was intrigued by. One was, you said you thought we needed to put a little more focus on joint employment issues. So I'm wondering if you can elaborate on that.

MS. SMITH: You all have a Guidance on joint employment that talks about the responsibilities of a temp agency and the responsibilities of the employer, and when there's a joint employer liability. And I just think it makes sense to spend some time looking at that guidance and ensuring that the scenarios that you talk about are up-to-date with the structures that are out there, franchises, the treatment of workers as independent contractors via using an LLC kind of structure in the workplace.

And then to look also -- and I haven't done this, but to look at the development of case law under the NLRB since you wrote your Guidance. There's certainly been some interest there to look more closely at joint employment. We're seeing so much fracturing of the workplace where I think in many places workers don't even know who is the employer, and that makes it difficult for them to complain, but it also makes it more of a challenge to determine those relationships and who is responsible for discrimination.

COMMISSIONER LIPNIC: Okay. My second question to you is you also talked about retaliation and you mentioned -- you thought - you threw out this idea of having some kind of rapid response team from the EEOC.

MS. SMITH: Um hmm.

COMMISSIONER LIPNIC: So, I'm wondering what that is and what do you envision -- where is our authority to have a rapid response team?

MS. SMITH: Well, I think it's part of the investigative process, right? And let me say that you have jumped in in cases and gotten protective orders to prevent retaliation in the form of informing immigration authorities or misuse of the I-9 process.

It seems to me that as part of an investigation, if there is an additional complaint of retaliation that an investigator can certainly call an employer and say, "This is what we're hearing is happening. This is what the law is on that."

And the idea, for me, comes from something that the New York State Department of Labor did in retaliation cases earlier. And they were really able to save a lot of jobs that way, by kind of doing a quick negotiation with the employer.

COMMISSIONER LIPNIC: Okay, so, switching questions then. So, this actually Ms. Hoq and Ms. Torphy-Donzella, this question to you, the both of you. You talked about when people switch back and forth in their language and so I'm curious about one, if you can elaborate a little bit, your experience with that and then I'm interested in your defense on something in a case like that.

MS. HOQ: Yeah, I mean, I can speak to it from our experience with our Delano clients, our Filipino clients who had been there for many, many generations. Actually, the history of the Filipino community there goes back to the time of the great worker strikes and their activism around those issues. But this is a community that's obviously been there for many, many years, but still continued to maintain heavy accents and a very close tie to their primary language, even though they are fully bilingual workers.

And so this concept of code-switching, you know, has been in the literature for some time and it's being refined and it's being used in cases. And I think a lot of the effective cases we see that have English-only policies have experts who can come and opine on not only generally what the phenomenon means to workers and their kind of tendency to switch back into their native language, but also specifically, you know, how that affects individuals and the harm that is imposed on individuals who, you know, are essentially having their primary or their dominant language suppressed.

And I think a lot of us have acknowledged, you know, language is intrinsically linked to your national origin identity. And so you're kind of tying those two together. I mean, on the one hand there's the physical kind of inability sometimes to stop yourself from switching back and forth and then there's the anxiety that comes with knowing that there's a policy out there that will penalize you for doing that inadvertently.

And we have talked about the fact that there's a range of proficiency, a range of language ability, but, you know, it is a spectrum and I think any policy that an organization has, has to realize that and kind of cater to both sides of that. But, you know, the most vulnerable, obviously, are the ones who are on the less proficient side.

MS. TORPHY-DONZELLA: I'm not sure how the experts have fared in litigation. I know in the Sephora case the court was not persuaded that this was something that was not controllable.

Secondly, you know, if you do have a legitimate English-only policy, such as in the operating room, is the proposition that if the nurse falls into her native language, it needs to be excused? No. And then do you exclude people from that job because they may code-switch? I guess I'm just not sure what you do with that, practically or legally.

COMMISSIONER LIPNIC: Anyone else want to comment on that? Ms. Smith? Mr. Farmer?

MR. FARMER: Yeah. It seems that the way that the courts have been looking at this is really on a case by case basis. I think on the one hand, you've got cases like EEOC v. Premier Operator Services where testimony from Dr. Seligson was adopted by the court and addressed code-switching and found that with respect to the particular individuals or employees at issue, that bilingual capability could not be turned on and off. People would inadvertently switch languages which supported the court's finding.

On the other hand, you've got cases like Garcia v. Gloor where an employee was terminated for violating a language restriction in the workplace. But there the court found, and this is a quote, "that the plaintiff violated the rule at every opportunity, since his hiring." In other words, the company was giving this person multiple chances and the final slip or final act that caused his termination was what the trial court found to be deliberately speaking Spanish on the job, in purposeful violation of Gloor's rule.

In other words there was suggestion that this person was intentionally violating the rule vis-a-vis the owner of the company, and the court found that that was sufficient to justify his termination.

Garcia v. Spun Steak carves out a middle ground. If you look at that case, you'll see that the court says, whether a bilingual speaker can control which language is used in a given circumstance is a factual issue that cannot be resolved by the court on summary judgment.

In other words, the court's saying, "We really have to know who these employees are." And certainly if you've got bilingual employees with minimal English/bilingual capabilities, code-switching may very well be a problem and may very well be difficult for that person to control and it could be a burdensome term and condition of employment to have an English-only rule.

On the other hand, there may be situations, like Garcia, where the court found the person to be fully fluent, fully bilingual, and was kind of using the language issue as maybe an advocacy tool, is the way you could read some of the record.

And so, adopting that middle ground is -- you know may be a position for the Commission to consider.

COMMISSIONER LIPNIC: Can I ask if anyone else wants to comment on that or --


COMMISSIONER LIPNIC: No, I guess not. (Laugh) I had another question.

CHAIR BERRIEN: Sorry. We can -- I think we may have a couple minutes at the end.


CHAIR BERRIEN: If we can --

COMMISSIONER LIPNIC: All right. Thank you.

CHAIR BERRIEN: -- just make sure we can get -- make good on our promise to these folks about when we would wrap up.

Okay, Commissioner Yang?

COMMISSIONER YANG: Thank you. I wanted to pick up on the issue of accent discrimination that Ms. Torphy-Donzella raised and Mr. Saenz raised. And I also know Ms. Hoq raised it in her written testimony.

The issue that Ms. Torphy-Donzella raised about employers' challenges in evaluating when an accent might interfere with the ability to perform the job. And I was wondering what your recommendations might be for, you know, what sort of factors should employers be considering, when they are making that decision? And if there's a way for the Commission to provide guidance on this area that would be helpful to both employers and employees.

And I thought I'd start with Ms. Hoq.

MS. HOQ: Thank you. Yeah, I think our primary request would be that the Commission direct employers back to the standard that was set forth in the Fragante case that I spoke about in my testimony where it essentially lays out the standard that, you know, one can discriminate on account of accent only when it interferes materially with job performance. And on top of that, employers should be held to the standard of doing a searching inquiry about what that means.

And so, really you know, I think that we oftentimes fall into these habits of common sensically saying, you know, "Well, a customer's not going to understand this person," and so, you know, just kind of relying on these kind of generalized kind of approaches to things. But really kind of having the standards, pointing to evidence, you know, if it's somebody who's already in the job, looking to see if this has come up in their performance evaluations, looking to see if there are complaints made, looking to see if, you know, over time the ability to have an accent be understood by co-workers would mediate that issue. I think all of those are very important things to do.

I also think you have to look at the job and really understand. You know, I think the guidelines do a decent job of identifying certain job categories where you will have that issue more often than not, and those are jobs where there's a lot of interaction with the public, jobs that are not routinized, you know, that have more kind of complex conversational requirements.

And so, you know, there's probably a range of, a kind of spectrum of jobs out there and really kind of for those jobs where you don't need to really be able to communicate in a way that's, you know, kind of more tailored to the situation but let's say you're at a toll booth and you know, your only job is to tell people how much change, you know, they're entitled to, is one situation where, you know, it shouldn't play in that much.

But if you're in a heavy customer service job where there's a lot of interaction with customers and it's not a routine kind of conversation, that, you know, you really hold those standards to your kind of "searching inquiry" of whether or not accent will interfere with the job.

COMMISSIONER YANG: And as one follow up question, I think you had also raised, in your testimony, the issue of potential listener bias. I'm wondering what we can do, as an Agency, to sort of raise awareness about the issue that accent, you know, can be perceived by people in a variety of different ways and how do you provide some guidance, you know, around that issue?

MS. HOQ: Yeah, with respect to listener bias, we think that it's really important, again, to look to these objective standards that I've been talking about. And in terms of advising employers and through the Guidance, really having very robust kind of examples of where that kind of listener bias can demonstrate itself, because I think that we all, you know, carry these biases with us. And, you know, and just highlighting them in a way where people realize that they exist.

You know, for example, the example that I gave where, you know, it may be that on first blush, you know, you find it difficult to understand somebody, but over time, you know, when you work with somebody on a regular basis, these kind of lack of understanding goes away or -- yeah, in situations where you have one supervisor and the employee is working for somebody very well for many years, and then you have a new supervisor who comes in and all of a sudden there seems to be accent issues or inability to understand, those are some good ways to kind of explain, you know, that you kind of have to look beyond just your initial reaction to somebody's accent.

COMMISSIONER YANG: Thank you. And Ms. Torphy-Donzella, I'd be interested in hearing from you also on what kind of guidance you think could be helpful on that issue, for employers.

MS. TORPHY-DONZELLA: That's very hard. That's very hard because accent is about listening and understanding. And I don't know if there's a scientific way to tell employers how to know if they're correctly not understanding someone, not able to understand them or if they're incorrectly, like Ms. Feldblum's father, she never thought he had an accent, but her friend said, "I can't understand him."

I'm not sure how -- I'm not sure how to have answers here. I don't envy you that position, but I will tell you, you know, in my salesmen case, they acknowledged they could understand him, because they worked with him every day and everyone in D.C. could understand him, but people who called from Georgia couldn't understand him, because they weren't used to accents.

Did that make him qualified or not for a promotion? That's a hard question to answer.

COMMISSIONER YANG: And thank you very much. Mr. Saenz, did you have something to add on this also?

MR. SAENZ: I would simply add that I think the EEOC could make -- should make clear that listener bias exists, it is dynamic, it changes based on social context and employers ought to legitimately inquire into that. Their inquiry has to include looking at that.

And you have to say that, because too often, in many areas of the law, because our aspiration is a non-discriminatory society, we think it's not legitimate to consider discrimination that occurs and exists outside of our own sphere of control, including, for example, among customers. So, I think employers have to be told, even though we aspire to a non-discriminatory workplace, we know the reality is that society has discriminatory biases in it, and it's legitimate and appropriate for you to look at that and consider it in evaluating whether you can employ a person with an accent.

COMMISSIONER YANG: Thank you very much. I see my time is out.

CHAIR BERRIEN: Thank you. We have heard a lot about some of the issues affecting the contemporary workplace, but one that we have not heard much about, but I believe Ms. Rosas mentions in her written statement is the status of and experiences of Caribbean immigrants and Afro-Latino and Continental African immigrants.

And being, as I am, I've spent half my life now in Brooklyn, New York, where they are a very significant part of the population. Muslima Lewis, who is on our staff and is detailed to my staff now and works out of our Miami office, has also done a great deal of work in that area.

So, I was wondering, Ms. Rosas, if you could mention a bit about what EEOC has encountered, in terms of those population groups, but I would really like to hear from anybody on the panel, to the extent that there are aspects of or dimensions of National Origin Discrimination involving those populations that we have not heard from or heard about earlier today, including how the intersectional theories or concepts apply to those population groups in the workplace.

MS. ROSAS: Yes, thank you. You know, we've had some successes in the Miami area, also I think one of our members of the public is here where we've co-counseled with SPLC on behalf of Haitian and Creole workers in the ag industry, primarily we've seen the cases. And a lot of it is similar to what Latinos or Mexicans experience where there is the derogatory slurs and the maltreatment because of their color, their race and their national origin. And so we've been successful, I think, in reaching to those communities, but probably not as good as we should be, given that, you know, immigrants travel throughout the country and therefore, you know, they're not just concentrated in Florida or Georgia, but probably are, you know, in New York, other places where we should be having successes there as well.

But one of the benefits of having individuals in our staff like Muslima and others, who are sensitive to those issues and also are -- we're building those collaborations with SPLC and other organizations, to identify the cases and figure out a way to remedy the situation before it becomes a problem.

MR. SAENZ: I would add, I think that you've identified the issue, which is an issue of multiple- bias discrimination that I think is an experience particularly for those in the Afro-Latino community. It's certainly something that we have observed and had brought to our attention.

And the other thing that I would add is the social context in which our workplaces occur also includes what may be going on in other countries. And in this regard I would mention the really troubling decision in the Dominican Republic to take away citizenship from multiple generations of Haitian immigrants. I think -- I would have to suspect that that may have impacts in the workplace in this country. So, we really have to, in identifying future issues, be aware that the social context is not limited to the domestic context, but might be influenced particularly where you have multiple immigrant communities interacting to what is happening in other countries as well.

CHAIR BERRIEN: Thank you. Anyone else want to comment? Thank you.

Ms. Smith, you emphasized, both in your statement to us today and in your written statement, that one of the things that we should be attentive to is the changing nature of employment relationships or workplace structure. And so there's often an intermediary of some kind in some of the industries that are heavily populated by immigrant workers and low wage workers in general.

Could you speak a bit more about either gaps that may exist in our guidance or directives about this issue or opportunities for us to collaborate more closely across government to try to fill any gaps that might exist as a result of that change in the workplace.

MS. SMITH: In terms of gaps, I think just looking at the policy again and making sure that it is uniform, I know there's some dispute among the circuits about the definition of employer under Title VII. And then, as I said earlier, I think really looking at law as it's been developed under the NLRA, because that's sort of the paradigm for your test of employer status.

I haven't gone through your guidance with enough of a fine-toothed comb to say exactly where other gaps might be. But I would say, just looking at some of the new structures that we're seeing that employers are using, like franchising and like establishment of limited liability corporation and then having workers buy into that as kind of a ruse to treat workers as independent contractors. And I think another phenomenon is that temp-staffing agencies aren't so temporary anymore, often, and have a continuing role at the workplace, and that might have implications for joint employment liability as well.

CHAIR BERRIEN: Thank you. And I think that we have -- I will yield the balance of my time for the continuation of that question or the responses to that question, if you'd like?


CHAIR BERRIEN: All right. Well, I want to thank you all for your participation in the questions and comments of the Commission. And at this time we'll turn now to closing statements by members of the Commission, beginning with Commissioner Barker.

COMMISSIONER BARKER: I just want to thank all of you for all the information you've given us today. And you've certainly given us a lot to think about, given us a lot more insight into this very, very complex problem. So, thank you again and I hope you continue to share your insight with us in the future.

I yield the rest of my time to Vicky, so she can finish her questions. (Laugh)

CHAIR BERRIEN: Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you. Number one, thank you very much for being here. I am very glad that we have, I hope, begun again a series of substantive meetings, so I want to thank Commissioner Yang and the Chair for putting this one on. And I think it's an important obligation on our part to collect information, to take information in, to be able to get a -- you know, step out from specific logistical things that we're looking at and really step back and take a look at the bigger picture. And so thank you, in terms of putting this meeting together, and I hope to see that replicated on a number of other sort of big picture issues that I think we could benefit from hearing.

I want to say, just to be able to give you back a sense of at least what I've taken from this, of course I -- you know, can change my -- you know, things change as new information comes in. But, I just want to say that my feeling on this is, in terms of what we need to do, absolutely we need to continue effective, targeted litigation. I mean, there's nothing that actually substitutes, I think, for purposes of an employer, to actually care about having those of you who represent employers here, care about coming to you, you know, and saying, "How should I do this better?" So, effective, targeted litigation I think is key.

I also think it's key though, that we understand, at the EEOC, that we're not the only kids on the block. There are other organizations, there are other lawyers who can bring cases and we have our limited resources, so that's why I say effective, targeted litigation. And if there's a case, even if some Regional Attorney is dying to bring it, if there's someone else who can bring it, and should be bringing it, I think we have to be conscious of that as a Commission. So, I think that's one.

Two, because I do think that we have other levers that we can pull that plaintiff attorneys or advocacy groups cannot pull as well, that's part of why. I mean, if we had unlimited resources, yeah, I would say, "Let's take every piece of litigation that we think makes sense." But I think there are three other things that we need to do, and so we need to have resources allocated for that.

One, we need our Guidance to be as updated as possible, all of our Guidance, not just this. I concur with Commissioner Lipnic's comments in the beginning of, there are a number of things in the queue that have not been updated since 2002, but, that is one thing that we can do. And so that's an obligation, to make sure our Guidance is taking into account current real workplace structures, current issues.

But also, the Guidance we have, to make sure that we're putting it out in that bite sized way that is usable. So, even if we're not going to revise Guidance, we want to think about the Guidance that we have, putting out in a useful way.

Three, I think we need to be clearly more proactive in terms of, as Mike Eastman said in your thing, it's a no-brainer that we should have training. The question is, what training works to really effectively deal with stereotypes. Again, I think that's something where we should put some of our resources. That was the point of, at least in harassment, putting in the Strategic Enforcement Plan as using that. I look forward to seeing what our Multiyear Outreach and Education Plan looks like, and so should all of you.

And fourth, we have a bully pulpit that we should be using in terms of education in the bigger way. So many ways people have said here, what's going on socially, in the public generally, plays out in the workplace, correct. And we have the capacity to do data collection and research.

Again, in our Strategic Enforcement Plan, we have called for a multiyear data and research plan. The reason for that is, I mean, look at the Restaurant Opportunity Center of New York, a New York City restaurant industry coalition, has done some phenomenal work that is in, you know, the NELP testimony. But that could be undermined because -- well, at least that's businesses as well as the -- I mean, that's a nice coalition, but we should be doing that, in terms of figuring out occupational segregation and what's going on.

So, I look forward to the Commission working on all of these things, with the appropriate allocation of resources to each one. And thank you, Commissioner Barker, because I just took some of your time.

CHAIR BERRIEN: Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you, Madam Chair. So I have about a dozen more questions and -- (laugh) just kidding. Actually I do, but again, thank you all, too, for your great testimony. I think this has been a really informative hearing for us. Thank you, Commissioner Yang, for putting it together.

And I just want to echo what Commissioner Barker said, that you know, as we are increasingly pluralistic, this basis of discrimination and these issues that we will grapple with in our workplaces are something that should be in the forefront of the Commission's work. And so we appreciate all the work that you're doing on it, and by all means, when you -- particularly when you have those difficult situations and difficult cases, please let us know, because you know, those are the -- I mean answering the hard questions is the really difficult part for all of us.

And Mr. Saenz, your comment about 1 in 6, 1 in 5, 1 in 4 you know, I think that's a good place for us to start and sort of figure out where to go from here.

So, thank you all.


Commissioner Yang?

COMMISSIONER YANG: Thank you. Thank you all our witnesses today for providing such thought provoking testimony, you have made my first Commission meeting live up to all my hopes and dreams. (Laugh) So, I really thank you for that.

We -- I personally -- really benefited from hearing your thoughts on how National Origin Discrimination impacts so many of the priority areas for the Commission, hearing about how the barriers to recruitment and hire and occupational segregation are really changing the workforce and ideas on what we can be doing better to address those really important issues.

I also appreciated your concrete suggestions on what we can do better to get at the issue of harassment in the workplace and ways in which we can work with employers and do outreach to help them in their efforts to prevent harassment.

I appreciate hearing about issues in the workforce that are transforming with a multilingual workforce and issues around language and accent that employers and employees are both struggling with.

And I also appreciate hearing about some of the concerns with retaliation. So, I should have mentioned, you know, one of our other priority areas is preserving access to the legal process and making sure that there are not policies that prevent workers from complaining about discrimination and prevent our investigators from fully investigating discrimination. So, I think those issues are also very important for us to consider.

So, I've found today's meeting extremely valuable from all of you. I thank Chair Berrien for her work on this meeting and all the members of the Commission for your interest and thought on how we can best address these issues.

And I would, again, like to recognize our General Counsel, David Lopez, and Lucy Rosas for some of the amazing work they have led on the Immigrant Worker Task Force, and all the members of the Commission who have worked with you on that effort. I really look forward to working with you, as a member of the Commission, on these issues that I think are incredibly important.

I look forward to hearing from all of you on the panel and in the audience and others who might watch this video, which will be available shortly to outside members who couldn't join us today. Because we're interested in hearing from you on comments that we weren't able to discuss today to follow up on. And I really encourage you to submit additional comments, because those are extremely valuable to us as we think about our next steps around these issues.

And I would like to recognize, specifically, some of the EEOC staff who worked to plan this meeting, and we could not have done this without you: Colleen Hampton-Lyster and Muslima Lewis, of the Chair's office, were incredibly helpful. My attorney advisors, Antoinette Eates and Peach Soltis and Wes Katahira of our Office of Field Programs who is on detail to my office. And I also wanted to thank Carol Miaskoff and Davis Kim of our Office of Legal Counsel, for their insights on these important issues.

So, this has been an extremely informative first meeting. And I thank you all for joining us.

CHAIR BERRIEN: Well, thank you. I think today's meeting has revealed or underscored a number of very, very, important issues, I'll only touch on a few.

It's clear that national origin discrimination impacts many of today's workers and today was an important reminder that it not only affects -- while it clearly does affect immigrant and migrant workers, it also affects a broad spectrum of people who may experience discrimination based not on any particular status, but on presumptions and on prejudices or perceptions about their origin, their ancestry, based on factors like surnames or accents or attire or other appearances and those appearances sometimes lead to prohibited discrimination as well.

As with other types of discrimination, we have heard that national origin discrimination can take many forms, but that it also is impacted by external conditions and it may worsen in crisis. Such as the backlash discrimination against individuals who were or were perceived to be Arab, Middle Eastern or South Asian, after the terrorist attacks of September 11th, 2001. As we heard and were reminded today, national origin discrimination in the workplace, as it occurred after the 9/11 attacks sometimes occurs together with other forms of unlawful discrimination, in complex ways, including discrimination on the basis of race, color, religion or sex.

Finally, our work to combat national origin discrimination is a reminder, we hope, to all that this issue affects some of the nation's most vulnerable workers who are either unaware of their rights, afraid to exercise them, or both.

As the Commission recognized in adopting the Strategic Enforcement Plan, this vulnerability elevates our responsibility to ensure a robust outreach and education effort that counteracts misconceptions about rights and responsibilities under the nation's civil rights laws and supports full and effective protection of the right to work free from the constraints of unlawful employment discrimination.

As you have heard, I think from everyone of us on the Commission, our work going forward will be informed and enhanced immeasurably by your participation in and your contributions to our meeting today.

I want to thank all of you. The information that we've heard and the suggestions that we've received from those of you who represent employers have provided us with valuable insights into some of the concerns that arise in your day-to-day counseling or representation of people in the employer communities, has sensitized us to some of the distinctions that might occur for small and larger businesses.

We have also been sensitized, I think, to some of the broad spectrum of issues that workers are confronting in various industries in different parts of the workplace and in various parts of the country. But it is all a powerful reminder, I think, for all of us.

Mr. Saenz, you said something that I often say when I talk about our work, and it is that our frame of reference cannot be today, it must be many years from today. And I think that is what's been the strength and the defining characteristic of this Commission since it opened its doors almost 50 years ago. And it is a charge that we are fully aware of and hope to meet today.

So, with that there are just a few closing logistical points. I want to echo what my colleague, Commissioner Barker, and others have said about our audience. We always appreciate those of you who come out to hear what the Commission meeting is about and to hear this testimony. And we recognize that in this, as in all instances, so many of you could also be here and provide us with useful information. And we want to encourage you, and everyone in the public who has additional information, to share with us about this, to take advantage of the post-meeting comment period.

The Commission will hold the meeting record open for 15 days and we invite members of the public to submit written comments on any issue or matter discussed at this meeting. Comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M Street, NE, Washington, D.C. 20507, or emailed to Commissionmeetingcomments, and that's all one word, at

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. By providing comments in response to the solicitation, you are consenting to their use and consideration by the Commission and to their public dissemination. Accordingly, please do not include any information in submitted comments that you do not want 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.

I thank our Office of Legal Counsel for helping us to frame that message and for so much of the advice that they provide to us, so that we make sure that we do the work of the Commission appropriately.

So, with that I believe we've concluded our business for today, and I will entertain a motion. Is there a motion?


CHAIR BERRIEN: All in favor?

(Chorus of ayes.)


(No audible response.)

CHAIR BERRIEN: Ayes carry. Meeting is adjourned. Thank you all very much again.

(Whereupon, the meeting was adjourned.) at 12:43 P.M.