1. Inicio
  2. meetings
  3. 24094
  4. transcript

Meeting of June 17, 2015 - Retaliation in the Workplace: Causes, Remedies, and Strategies for Prevention - Transcript


JENNY R. YANG,                         Chair
CONSTANCE S. BARKER,         Commissioner
CHARLOTTE A. BURROWS,         Commissioner
CHAI R. FELDBLUM,         Commissioner
VICTORIA A. LIPNIC,          Commissioner


JAMES LEE,                      Deputy General Counsel
PEGGY R. MASTROIANNI,       Legal Counsel
BERNADETTE B. WILSON,       Acting Executive Officer

This transcript was produced from a DVD provided by the Equal Employment Opportunity Commission.



  1. Announcement of Notation Votes
  2. Retaliation in the Workplace: Causes, Remedies and Strategies for Prevention


    Raymond L. Peeler, Senior Attorney Advisor,
    Office of Legal Counsel
    EEOC, Washington, DC

    Karen M. Buesing, Partner, Akerman, LLP
    Tampa, FL

    Lisa J. Banks, Partner, Katz, Marshall &
    Banks, LLP, Washington, DC

    Anica C. Jones, Trial Attorney, EEOC
    Nashville, TN

    Jacquelyn Hines, Charging Party, EEOC v
    New Breed Logistics, (US District Courthouse
    for the Western District of Tennessee
    at Memphis

    Daniel Werner, Senior Supervising Attorney,
    Immigrant Justice Initiative, Southern
    Poverty Law Center, Atlanta, GA

    Sharon L. Sellers, SHRM-SCP, President,
    SLS Consulting, LLC, Santee, SC

    Dexter Brooks, Associate Director, Federal
    Sector Programs, Office of Federal
    Operations, EEOC, Washington, DC

  3. Motion to Close


(9:32 a.m.)

CHAIR YANG: Good morning everyone. The meeting will now come to order. Thank you all for being here. In accordance with the Sunshine Act today, today's meeting is open to public observation of the Commission's deliberation and voting. At this time I am going to ask Bernadette Wilson to announce any notation votes that have taken place since the last Commission meeting. Ms. Wilson?

MS. WILSON: Thank you. Good morning and before I begin, is there anyone in need of sign language interpreter? Okay, thank you. Good morning again, Madam Chair, Commissioners, Deputy General Counsel, Legal Counsel, I'm Bernadette Wilson from the Executive Secretariat.

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

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

During the period April 14, 2015, through June 12, 2015, the Commission acted on 17 items by notation vote:

Approved litigation on two (2) cases;

Approved amicus participation in three cases;

Approved three (3) subpoena determinations;

Approved FY 2015 budget allocations for state and local programs;

Approved revisions to regulations under Section 501 of the Rehabilitation Act of 1973 requiring the federal government to engage in affirmative action for individuals with disabilities;

Approved a memorandum of understanding between EEOC and the Department of Justice's Civil Rights Division Disability Rights Section regarding ADA and GINA charges against state and local governments;

Approved the following contracts: Renewal of LRP Cyber Feds on the web; BNA's Daily Labor Report; EEOC survey collection reports; and, a contract for an expert witness in support of a litigation case; and,

Approved resolutions honoring Janet V. Elizondo and Gerald "Gerry" L. Patterson on their retirements.

Madam Chair?

CHAIR YANG: Thank you Ms. Wilson. Welcome and thank you to my fellow Commissioners, to all EEOC staff, members of the public and media representatives who are here with us in the Commission meeting room in Washington and to all those in our field offices who are watching us online.

I'd also like to extend a special thanks to our distinguished panel of speakers for participating in today's Commission meeting and contributing to this discussion of the important topic of Retaliation in the Workplace: Causes, Remedies and Strategies for Prevention. You all have provided some exceptional testimony that will be extremely valuable to the Commission as we study this issue further. And I appreciate all the time you've spent to put that testimony together and to come here to share your experiences with us today. Finally, I'd like to thank my colleague, Commissioner Charlotte Burrows who has worked closely with our office on this meeting to organize and identify this outstanding panel.

I have asked Commissioner Burrows to trade places with me in the presentation of opening remarks. So she will go first and I will close it out today. I want to thank you for your leadership, Commissioner Burrows, and to please open our discussion on the subject of Retaliation in the Workplace: Causes, Remedies and Strategies for Prevention.

COMMISSIONER BURROWS: Thank you, Jenny, Chair Yang and thank you very much for holding this important meeting and for affording our office the opportunity to assist with today's preparations. I would also like to join in extending my sincere thanks to the panel for the work that you did in preparing for today and for the thoughtful testimony and also to my Chief of Staff, Deb Vagins who spent an enormous amount of time in today's preparation. So thank you, Deb, for that.

This summer the Commission celebrates its 50th anniversary. It's an important moment to reflect on the nation's progress toward equal opportunity. And that progress has been tremendous but it means it's very important for us to focus on the threat that retaliation potentially poses. As others may have noted in the testimony, we have seen a dramatic increase in retaliation charges and we'll hear more about that I believe from the Office of Legal Counsel here. It's something we've been watching very closely.

Retaliation is now the claim most frequently alleged in EEOC charges as well as in the federal sector complaints. Retaliation charges have increased from roughly 30 percent of all charges in fiscal year 2006 to almost 43 percent in fiscal year 2014, a record high.

However, this doesn't seem to be due to an increase in unfounded charges because the percentages of retaliation charges with some form of merit resolution is similar to the merit resolution rate for all charges combined. Over the past decade retaliation also has been the most common issue alleged by federal employees. In fiscal year 2013 nearly half of all federal sector equal opportunity employment complaints alleged retaliation and 42 percent of all discrimination findings were based on retaliation. Retaliation is uniquely insidious because it creates an atmosphere of intimidation that affects everyone in the work place.

As the Supreme Court said in Crawford v. Metropolitan Government of Nashville, fear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination. Unless employees are protected from retaliation for asserting their civil rights, those rights exist only on paper.

So I'm pleased to say the Commission has achieved some significant victories for employees facing retaliation. Today we'll hear about one of them from Ms. Jacquelyn Hines, one of the Charging Parties in the New Breed case and from EEOC Trial Attorney, Anica Jones who helped try the case. Ms. Hines and two coworkers were subjected to shameful sexual harassment and a male colleague was later retaliated against for opposing it. I commend Ms. Hines for her courage in standing up to discrimination and thank you very much for being here today.

Congratulations also and welcome to Ms. Jones, the Trial Attorney for the impressive victory in the litigation. I'm also glad that we will hear testimony today about retaliation against vulnerable migrant and immigrant workers. That testimony helps further two of the Commission's strategic enforcement priorities: preserving access to the legal system and protecting vulnerable immigrant and migrant workers. And I look forward to hearing recommendations for best practices from both the employer and the employee community about how to wrestle with these problems from their unique perspectives.

Finally, there's another form of retaliation that's critical to today's discussion. According to the Institute for Women's Policy Research, more than 60 percent of private sector workers reported that their employers either prohibit or strongly discourage employees from discussing their wages. These pay secrecy policies can act as a significant barrier to pay equity for women by preventing women from learning about discriminatory pay policies and by threatening punishment for those who seek to uncover pay discrimination.

The case of Lilly Ledbetter which inspired the Lilly Ledbetter Fair Pay Act is a good example. Goodyear Tire, where she worked for 19 years, had such a policy. Ms. Ledbetter had no idea that she earned less -- significantly less than her male coworkers doing the same job, including those whom she had trained herself -- until someone slipped her an anonymous note years after the discrimination.

But neither she nor her coworkers were actually allowed to discuss their own pay. So she had no recourse under, as a manager she had no recourse under the National Labor Relations Act or other laws. So in recognition of this problem, President Obama signed an Executive Order last year banning retaliation for wage disclosure in federal contracting, citing the negative impact on businesses' bottom lines.

I understand that rulemaking should be final soon reaching about 26 million persons employed by federal contractors which may begin to alleviate the negative effect of discriminatory pay policies. There's more work to be done to ensure that these policies do not create and other practices don't create an environment of fear in which employees are afraid to oppose discriminatory practices.

Responsible employers have an economic interest in ensuring that unlawful retaliation is not tolerated. And simply put, retaliation is bad for business. It's in all of our interests to work together to develop strategies to end retaliation and this hearing is a good start in that direction. So I very much appreciate all of you being here. And I yield back my time.

CHAIR YANG: Thank you very much, Commissioner Burrows. And now I'd like to turn it over to Commissioner Barker.

COMMISSIONER BARKER: There we go! Good morning everybody and I'd like to thank our panel in advance for, especially those who came so far to join us and give us the benefit of their thoughts this morning.

This is, retaliation particularly in the arena of retaliation against immigrants and migrant farm workers that the Southern Poverty Law Center has done a lot of work on is a particular concern of mine. So I'm very interested in that particular area of our discussions this morning. Again, thank you very much and I look forward to the testimony.

CHAIR YANG: Thank you very much, Commissioner Barker. Commissioner Feldblum.

COMMISSIONER FELDBLUM: Thank you so much Chair Yang. I want to thank Chair Yang for putting, to agreeing and pushing actually, really supporting a hearing on retaliation. And I especially want to thank my colleague, Commissioner Burrows and her staff for really doing some incredible work in putting this together.

And of course all of you who are here, you are the ones that actually put in incredible work in terms of putting together your testimony and willing to listen to and answer our questions. I can't imagine how our employment civil rights laws can operate effectively if employees are not afraid that they will experience reprisal if they complain about, if they oppose discrimination. I'm not sure how those could work effectively.

I'm not sure how our workplaces could work effectively if employers were not able to discipline and terminate employees who are not doing their job. I don't see these two goals as mutually exclusive. In fact I see them as mutually reinforcing. And I certainly hope that the testimony we hear today will either confirm my sense of that or disabuse me of that assumption. Thanks so much.

CHAIR YANG: Thank you so much. Commissioner Lipnic.

COMMISSIONER LIPNIC: Thank you so much Madam Chair. Good morning everyone and especially good morning to our witnesses and thank you so much for all the time and work you've put into your testimony. I commend you, Madam Chair, and our colleague Commissioner Burrows for working to bring this meeting together this morning.

As we have already heard this morning and will certainly learn further in the testimony, the EEOC sees far too many charges of retaliation under every statute that we administer. This is troubling not only as a matter of substance, because actionable retaliation is by definition unlawful with respect to any individual, but perhaps even more so because of the ripple effect such retaliation may have on a greater number of employees who when they see a coworker become the victim of retaliation, may themselves then think twice before speaking up for their own workplace rights the next time.

Earlier this week the EEOC Select Task Force on the Study of Harassment in the Workplace, which was commissioned earlier this year by Chair Yang and which I am honored to chair with my colleague, Commissioner Feldblum, had its first public meeting to examine the persistent and still too prevalent problem of harassment in the workplace.

In this meeting the Select Task Force, which is comprised of representatives of employers, employee advocacy groups, organized labor, management and plaintiff-side bars and academic experts in psychology and sociology undertook to dig down into the data and research of workplace harassment to try to understand it better fundamentally why harassers engage in behaviors they do; what are the behavioral responses of victims as well as allies and bystanders; things like that, in a first step toward our ultimate goal of trying to determine how best to respond to and eliminate harassment of all forms in the workplace.

Not surprisingly, given the broad range of viewpoints represented on the select task force, it is rare that all or even many of its members share the same view or opinion. But if there was one view which seemed to be shared by many task force members, it's that we would all be in a better place were we able to prevent harassment before it occurred rather than deal with its aftermath and consequences.

To that end, among the things the task force is doing, we are working to see if there are risk factors, or other indicators that might show where harassment was more likely to occur. If there are reliable predictors or risk factors, what might we do to address them proactively rather than after the fact?

I raise all of this here this morning because in preparing for this morning's hearing and reviewing the excellent testimony that we have in front of us, I was struck by the commonality of purpose in dealing with harassment and retaliation. Sitting here today, I think all of us and all of our witnesses would agree that we would be in a better world if we were able to prevent workplace retaliation on any basis before it occurred, rather than simply focusing on improving the ways we respond to it when it does.

For their part I believe employers as a matter of dollars and cents as well as a matter of maintaining the best workforce they can, would prefer to train and manage to prevent retaliatory behavior before it occurs rather than respond to it in a subsequent investigation or lawsuit. I am equally sure that victims of retaliation, even if they are ultimately made whole through the legal process, would rather not have been harmed in the first place.

That's the view with which I approach this morning's hearing. I do believe that it is vitally important to make sure that victims of retaliation have strong, fair and effective protections. But I think as a society our workplaces are better served when we figure out how to avoid retaliation from ever occurring in the first place.

I fully recognize and as our witnesses' testimony all indicated, this may be a matter of having to defy both the laws of gravity and of human nature. Nevertheless I look forward to hearing the views of our witnesses on this point. Again I thank you for, Madam Chair, and Commissioner Burrows for convening this important hearing and I yield back.

CHAIR YANG: Thank you Commissioner Lipnic. As I am excited to hear from our panelists today I will keep it short. But we do know that retaliation is a persistent problem in our workplaces today and across our Agency we are interested in understanding what we can do better to more effectively prevent retaliation in the workplace and to ensure that we're effectively enforcing the law, because as our Office of Legal Counsel representative, Ray Peeler will tell you, ensuring that we have an effective complaint process, is the linchpin to our enforcement of our civil rights laws.

If individuals are afraid to come forward, we will not learn about important issues of discrimination that we will need to be investigating. So we know that this area in particular is sort of the cornerstone to all of the work that we do enforcing the federal civil rights laws.

We have seen that EEOC charges on retaliation have doubled since we issued our Compliance Manual on Retaliation in 1998. And we have also seen that at the close of the last five fiscal years, retaliation lawsuits have constituted at least 30 percent of our litigation docket. Across the federal sector, retaliation has also become the most frequently alleged basis of discrimination. Nearly half of all complaints filed during 2013 were retaliation complaints and we'll hear from Dexter Brooks who will tell us more about some of the strategies they're employing across the federal sector to understand the root causes of retaliation so that they can prevent it across the federal government.

We are excited to hear from this distinguished panel about some of those causes as well as strategies that you see that are working to prevent retaliation and to ensure an effective complaint process exists so that individuals are not chilled from coming forward to report violations of the law.

As Commissioner Lipnic mentioned, we have a select task force looking at the study of harassment. And one area that I'm particularly interested in understanding is that relationship between harassment charges and retaliation because we have seen those linked at a higher rate than other charges. Going back to 2010, we have seen charges that include a claim of retaliation and a claim of harassment increase from 37.6 percent in 2010 to nearly 43 percent in 2014.

And we know there's a particular need for clarity in this area as the courts have applied different standards about when an individual who complains about harassment is protected from retaliation. So we're interested in hearing from you all on that issue as well. I am very much looking forward to hearing from Ms. Jones and Ms. Hines about EEOC v. New Breed Logistics.

I just came back from Nashville last night where I got to meet with our office, and hear more about this case as well as Ms. Hines and your courage in coming forward. So I thank you for coming out and I just want to give a shout out to the Nashville office because I know they're all sitting in the conference room watching you both today. So today we will look at how we can more effectively accomplish our mission of stopping and remedying discrimination.

As many of you know, we adopted a Strategic Enforcement Plan that identifies ensuring people have access to the legal system as one of our national priority areas. So that's a critical area for us to be understanding across the government. Additionally, the Federal Sector Complement Plan recognizes that federal supervisors and managers may be unaware of how the law on retaliation has developed and they are committed to training and outreach efforts in this area.

So please feel free to provide suggestions for us about how we can be more effective in our work across the Agency in addressing retaliation; steps we can take after we notify an employer that a charge of discrimination has been filed and learning from you about some of the practices you see working to prevent retaliation.

In closing, I'd like to again thank all of our panelists for their participation today and the time they've spent developing their testimony. I'd also like to thank Commissioner Burrows' Chief of Staff, Deborah Vagins for her hard work in organizing today's meeting and Cathy Ventrell-Monsees and Colleen Hampton-Lyster of my staff as well as Kimberly Smith-Brown and Justine Lisser of the Office of Communications and Legislative Affairs who helped with today's meeting.

With that, let's start with the meeting. We will have one panel and then we will open the floor for questions and comments from Members of the Commission. Each of the panelists will have five minutes to make oral presentations and your complete written statements are available on our website. Please note that we're using 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.

Commissioners' questions and comments will begin after all of you have completed your opening statements. So it's my pleasure to welcome and introduce our panel of presenters. We have Raymond Peeler, a Senior Attorney Advisor in the EEOC's Office of Legal Counsel; Karen Buesing a Partner at Akerman, LLP; Lisa Banks is a Partner at Katz, Marshall and Banks, LLP; Anica Jones is a Trial Attorney in EEOC's Nashville Area Office; Jacquelyn Hines was one of the Charging Parties who came forward in EEOC v. New Breed Logistics in the U.S. District Court for the Western District of Tennessee at Memphis. And Daniel Werner is a Senior Supervisory Attorney at the Immigrant Justice Initiative at the Southern Poverty Law Center. Sharon Sellers is the President of SLS Consulting and the current State Director of the South Carolina SHRM State Council. Dexter Brooks is the Associate Director of Federal Sector Programs at EEOC's Office of Federal Operations.

Again, we're pleased to have such an exceptional panel of experts with us today and we thank you for being here. We will begin with Raymond Peeler.

MR. PEELER: Thank you. Madam Chair and Commissioners, thank you for the opportunity to discuss retaliation in the workplace. Retaliation claims cut across all EEOC enforced statutes and each law has a provision prohibiting retaliation. Today I'll discuss four factors that underscore the importance of the Commission focusing on this issue.

First, and I think I'm obligated to deliver this line now, retaliation is the linchpin for all civil rights enforcement. If employees fear the repercussions for opposing discrimination, then they are unlikely to seek enforcement of their rights. For this reason coverage is often read broadly and is, as is the conduct that may be challenged.

To pursue a retaliation claim, the charging party generally must have engaged in protected activity in the form of either participation in a complaint, investigation or a lawsuit, or opposition to conduct that the employee reasonably believes is unlawful. The employee also must have suffered a materially adverse action which is a broader standard than applied to other discrimination claims and which includes more than ultimate employment actions or even actions affecting employment.

Of course the charging party must prove that the action was taken because of his or her protected activity. But the failure of a charging party's original discrimination complaint does not necessarily doom the retaliation claim.

Second, retaliation is now the most alleged ground of discrimination as you've heard. Statistics reveal dramatic increases in charges alleging retaliation, up 42 percent since just 2007 and now accounting for almost 43 percent of all charges.

Also worth noting is that the rate of finding reasonable cause that discrimination has occurred, while it might appear low when viewed in isolation at 2.9 percent, is in line with the total reasonable cause rate despite this increase. A separate statistic called merit resolutions, which also include settlements and withdrawals with benefits, accounts for between 17 and almost 24 percent of retaliation charges over the last eight years.

Third, seven Supreme Court decisions have addressed retaliation since the Commission issued its Compliance Manual on Retaliation in 1998. Some of these cases such as Burlington Northern v. White, cited the Commission's Manual extensively and reached conclusions consistent with our policy. Others, while not explicitly overruling Commission guidance introduce new terms or analyses and one, the University of Texas Southwest Hospital v. Nassar, holding that "but for" causation is required for retaliation claims does explicitly overrule a position in the '98 Guidance.

Fourth and finally, there have been several new legal developments among the lower courts, often with inconsistent results between the circuits. Among these questions, the Commission has been the most active in cases addressing when internal complaints may constitute protected activity. When internal complaints are not covered as protected activity, they frustrate the Supreme Court's encouragement of workers to report harassment internally before it becomes unlawful.

As a result, if the worker complains, she's vulnerable to retaliation. But if she remains silent, she then may be providing her employer with a defense to a subsequent harassment claim by failing to take advantage of the employer's internal complaint mechanism. You will hear more about the EEOC's work on one case in this area, EEOC v. New Breed Logistics from my co-panelists.

The Office of General Counsel participated as Amicus Curiae in another, Boyer-Liberto v. Fontainebleau Corp., where the en banc court overturned precedent to find that an internal complaint about a degrading and humiliating racial epithet was protected activity because it was the type of conduct that would create a hostile work environment if it continued. Other emerging questions in retaliation law include when employer conduct that is not an ultimate employment action is sufficiently adverse to state a claim; whether retaliatory or harassment claims should be analyzed differently from other retaliation cases; why social media usage is relevant in some retaliation cases; and how to analyze the ADA interference provisions, which is related to but separate from the law's anti-retaliation provision and is unique among EEOC enforced laws.

All of these issues are addressed in greater detail in my written testimony and I look forward to your questions. Thank you.

CHAIR YANG: Thank you, now Ms. Buesing.

MS. BUESING: Thank you for the opportunity to be here. The EEOC is rightly concerned with the explosive growth of retaliation claims. I can assure you employers are even more concerned. Retaliation claims from the employer perspective are very easy to tack on to an underlying claim and they may enhance the perceived legitimacy of an underlying claim.

They provide an additional basis for recovery. And until the Supreme Court's decision in Nassar, they were much easier to prove. Why? Because as Commissioner Lipnic alluded to, we're dealing with the laws of human nature and it is widely assumed that it is human nature to be upset with someone who accuses you of wrongdoing and want to get even. Therefore, one would find it plausible maybe even probable that a supervisor would retaliate against a complaining employee. But I would like for you to look at the flip side of that from the employer's perspective. It is also human nature for an employee to be upset with a supervisor who thinks that the employee's performance is not as good as the employee thinks. And in those circumstances, particularly since the Participation Clause of Title VII protects an employee who engages in protected activity even if it's not in good faith, why not file a charge in order to ensure job security.

That is one reason for the explosion in retaliation claims. And again and again employers are faced with this exact situation. You have an employee who is engaged in misconduct or poor performance and sees the handwriting on the wall and they file a charge or bring a complaint for purposes of job security. That is one of the issues that is, in fact, addressed by the Supreme Court in Nassar.

Commissioner Burrows, you alluded to retaliation charges as being uniquely insidious. They are uniquely insidious from an employer's perspective for another reason, and that is because a person can make him or herself a member of a protected class by filing a charge that is unique to retaliation. They would not otherwise belong to a protected class and that is a problem. I don't mean to suggest that retaliation never occurs - certainly it does. However, my personal experience and that of many of my management colleagues suggests that most retaliation charges are simply without merit and the statistics that Mr. Peeler just cited bear that out, less than three percent result in a cause finding. The Supreme Court in Nassar clearly recognized that employees can too easily make frivolous complaints in order to forestall a disciplinary action or termination and hence require the showing that but for the protected activity, they would not have been terminated. The Commission has requested suggestions from the employer community for reducing these charges. Given the Agency's limited resources and the small percentage that results in cause findings I would suggest that the EEOC amend its guidance to give more detailed instructions to field staff on what they should be looking for and how to evaluate charges being mindful that, as Commissioner Feldblum said, employers need to be able to discipline and terminate employees who are not doing their jobs. And since employers routinely reviewed the compliance manual as well, it will inform the employer community.

In particular, Agency investigators should require evidence corroborating the employee's claim that but for the protected activity the employee would not have been terminated. Among other things, an investigator should consider whether the employee actually did engage in protected activity by making a complaint about discrimination or harassment rather than a vague complaint which is often the case, just a vague complaint that they weren't treated well.

If the complaint was not in writing, it's important for the investigator to determine whether there were in fact witnesses who can verify what the employee said. And critically important, was the employee aware of their performance or conduct issues prior to the time that they made the complaint? Is there any documentation supporting that, and was the employee's complaint in fact a preemptive strike?

The investigators should be particularly wary of the temporal proximity after Nassar, because, as the Supreme Court noted, an employee can time his or her complaint so as to create temporal proximity. It's important to find out whether the employer gave the employee an opportunity to, whether the employer investigated the complaint, whether the employee gave the employer an opportunity to investigate the complaint and take corrective action, and if not, if there's some reason that they did not do so; and whether the decision maker in any adverse action was aware of the employee's complaint at the time the decision was made.

With thoughtful guidance and training, Agency investigators can conserve the resources of the Agency to pursue legitimate claims of discrimination. And if employers are doing the right thing, investigators should be left with just one question which is, whether the evidence shows that the protected activity was the reason for the adverse action. I would suggest the court look at my written testimony with respect to best practices, because I addressed it there as well and thank you again for the opportunity.

CHAIR YANG: Thank you very much. Ms. Banks.

MS. BANKS: Thank you Chair Yang and distinguished Commissioners for giving me the opportunity to speak with you today. As we all know, there have been significant developments in the law of retaliation since 1998, and the employment law community is looking forward to your guidance on the development of these issues.

First, I need to respectfully disagree with my colleague that most employees lodge frivolous or false claims in order to protect themselves from termination. My firm and I have prosecuted hundreds of these cases and I am hard pressed to recall even one where the claim of discrimination was asserted solely to protect the employee from termination. While there may be some employees who engage in this kind of conduct, it is certainly the exception and not the rule. The plain fact is that when employees engage in protected activity in the workplace, by complaining about discriminatory conduct or filing a charge, they are often retaliated against. That becomes clear by the statements made and the actions taken by employers. What we see is surprisingly overt, not always and not by all employers. But it happens and it happens more often than it should.

It's my opinion that retaliation claims are prevalent because employers are human beings and because of that they often react to charges of wrongdoing emotionally and hastily. Not reacting harshly to a charge of discrimination, well founded or not, takes composure and discipline, qualities that are in short supply in the heat of the moment.

I believe that in many instances retaliation is actually considered to be good business by employers rather than bad business, in the sense that the employer is often glad to get rid of a perceived troublemaker. And there is simply not the same stigma attached to retaliation as there is to engaging in discrimination and harassment. Oftentimes supervisors or employers are simply doing what they think needs to be done or ought to be done in the circumstances.

Because retaliation is driven largely by emotion, and because it often achieves a desired result for the employer, it's naturally going to happen more frequently and it's not as easily addressed through training. But because of that, workplace education and training should highlight and focus on retaliation more than they currently do.

It is my sense from working with my clients that this is an area where there was actually less training as compared to discrimination and harassment. So there has to be more frequent and more effective training on retaliation so that employers have a better understanding of what they can and cannot do in the face of an employer's protected activity or an employee's protected activity.

But I also think that employees need to be trained as well so that they can understand how to protect their rights but also to understand that not all actions taken by an employer are retaliatory even if they occur after protected activity; and also, that complaints of protected activity will not protect them from legitimate discipline, particularly if it's already in the works. So the education and training needs to happen on both sides.

As the Commission moves forward to providing new guidance on the issue of retaliation, there are several more substantive areas that I think should be addressed and would provide great assistance to the employment law community. First, there obviously needs to be some guidance on how to apply the Nassar decision to our cases going forward. What impact, if any, does the but for standard have on how we approach these cases? For example, does this new heightened causation standard apply when analyzing the prima facie case or only when we assess evidence of pretext? It is my own belief as a practitioner that Nassar and the but for standard will not have as much impact as feared or as hoped, depending on your perspective. In my opinion and my experience thus far, evidence that was sufficient to establish pretext under a motivating factor analysis, will usually be enough to satisfy the but for standard. In general, I believe that the same cases as before will survive summary judgment and make their way to a jury.

I think the Fourth Circuit's recent decision in Foster v. University of Maryland, decided just less than a month ago, bares this out. The Foster case illustrates what I and some of my colleagues already believe, that in practice, because but for is not sole cause, the actual effect of Nassar on the prosecution of retaliation claims, will not be as significant as originally thought.

Next, in 30 seconds, I want to say that it would be useful to both employers and employees for the Commission to provide guidance and clarity on the issue of protection from retaliation for employees in an HR and compliance role, an issue that arises more and more frequently in my practice. Many clients who come to us are in that role and suffer retaliation because of reports they make, investigations they conduct, or counseling they provide.

In almost every instance when we engage in substantive debate or settlement discussions, we have to cross the threshold of, are they able to bring retaliation claims at all without stepping outside that role? The argument stems from an old FLSA case that was improperly exported to the Title VII context and as a result there's been a wholesale exclusion of these types of employees from protections of anti-retaliation law.

We cannot leave an entire segment of employees who are largely responsible for identifying, reporting and addressing issues of discrimination, harassment in the workplace wholly unprotected from retaliation protection under Title VII. So these are just two of the issues that I addressed in my written submission. There are a number of others that I think it would be useful to get the Commission's take on and any subsequent guidance including the wage disclosure prohibition policies, the "cat's paw" doctrine and the standard for retaliatory harassment. So I look forward to any further questions or discussion from the Commissioners and thank you for allowing me to offer my testimony here today.

CHAIR YANG: Thank you Ms. Banks. Ms. Jones.

MS. JONES: Good morning. My name is Anica Jones. I'm an EEOC Trial Attorney in the Memphis District Office and I'm assigned to the Nashville Area Office. I served as Lead Counsel in the case EEOC v. New Breed Logistics, a sexual harassment and retaliation lawsuit filed in the United States District Court in Memphis, Tennessee in September of 2010.

My Co-counsel Trial Attorneys Matthew McCoy and Kelley Thomas and I tried the New Breed case before a Memphis jury in May of 2013. As you know, the jury found in favor of the EEOC on all claims, and awarded the four claimants over $1.5 million. New Breed appealed the verdict but on April 22, 2015, the Sixth Circuit Court of Appeals affirmed the jury verdict.

In doing so, the Sixth Circuit addressed an issue of first impression and established new law in the circuit, telling an harassing supervisor to cease his harassing conduct constitutes protected activity covered by Title VII. The appeal was handled by Appellate Attorneys Susan Oxford and Lorraine Davis. New Breed recently filed a petition for rehearing.

This case began when Charging Party, Tiffany Pete, filed a charge of discrimination against New Breed in June of 2008, approximately one month after she was discharged in retaliation for complaining about sexual harassment by a New Breed warehouse supervisor. Ms. Pete alleged that she asked the harassing supervisor to stop the behavior but he never would. Shortly thereafter, the supervisor caused New Breed to transfer Ms. Pete and another victim of the harassment named Capricious Pearson from that supervisor's department.

After their transfer, New Breed fired them within a week. Ms. Jacquelyn Hines, who is here today, also worked under the same harassing supervisor. Ms. Hines was subjected to retaliation after she repeatedly told the harassing supervisor to stop his harassment. The supervisor ultimately fired Ms. Hines because she rejected his sexual advances. The supervisor also retaliated against a male employee named Christopher Partee. Mr. Partee supported the women's claims against the supervisor and told the harassing supervisor to stop his behavior because the harassment made the women uncomfortable. This supervisor caused Mr. Partee's discharge after he orchestrated a plan to get Mr. Partee fired just as he did the other three women. The Commission pursued sexual harassment and retaliation claims for each of the three claimants, each of the three female claimants, excuse me, and a retaliation claim for Mr. Partee.

As to the retaliation claims the Commission alleged the harassing supervisor caused three employees' discharge under the cat's paw theory, and on his own authority he directed the firing of Ms. Hines.

During New Breed's internal investigation, Ms. Hines was identified as a victim of sexual harassment. But what the Commission learned during discovery led us to pursue a second claim of retaliation on Ms. Hines' behalf.

When I first met Ms. Hines, she explained that after she was fired from New Breed's Memphis warehouse, New Breed's HR manager contacted her as part of New Breed's internal investigation and questioned her about the harassment. Ms. Hines participated in that investigation by answering questions about harassment.

A couple weeks later, she learned that New Breed was hiring permanent employees at a warehouse in Olive Branch, Mississippi, which is just minutes away from Memphis. Ms. Hines applied and she was hired. The job seemed to be going well, but a couple weeks later she was abruptly fired and escorted off the premises for no apparent reason. This second termination, occurring within weeks of the first termination, certainly raised red flags.

Ms. Hines suffered retaliation for opposing sexual harassment and now she suffered retaliation for participating in the company's internal investigation.

During discovery I took a deposition of New Breed's HR manager, and the HR manager admitted that she recognized Ms. Hines' name from the internal investigation and had her fired from the Memphis, excuse me, from the Mississippi warehouse.

Thereafter the Commission filed a motion for leave to amend its initial complaint and the court granted that leave. The Commission added a second claim of retaliation on Ms. Hines' behalf. The jury heard all of the evidence and appropriately awarded damages to each of the four claimants: Ms. Pete, Ms. Pearson, Ms. Hines and Mr. Partee.

I would like to mention some takeaway points before I conclude. Retaliation is avoidable, but to avoid it, company personnel must provide training on retaliation, investigate immediately claims of discrimination and take corrective action. Once complaints are known to the harasser, he or she may have the power to retaliate and that's exactly what occurred in this case.

At trial the HR manager claimed that she had launched an investigation as soon as possible, but her investigation did not seek detailed information. Rather she relied on the harasser. Her investigation consisted of asking the harasser five questions. Further, each of the four claimants were fired within days of the protected activity and each was fired either before or during New Breed's internal investigation.

Also at the time of the harassment, New Breed was just opening warehouses in the Memphis area and hiring temporary employees to meet its needs. In fact, 80 percent of the workforce were temporary employees and according to New Breed's policy, only permanent employees were given employee handbooks.

The temporary employees had little to no training on sexual harassment or retaliation and they had no handbook. This proved to be detrimental to New Breed's defense.

In conclusion, I just want to thank Chair Yang and the Commissioners for allowing me to come here today to discuss retaliation. It was a pleasure working with each of the four claimants during this litigation and I'm pleased that Ms. Jacquelyn Hines is here and she can tell us her story. Thank you.

CHAIR YANG: Thank you Ms. Jones. Ms. Hines.

MS. HINES: Good morning. I want to thank the Commission for inviting me here to speak today. My name is Jacquelyn Hines and I'm one of the four claimants in the EEOC's lawsuit against New Breed Logistics in Memphis, Tennessee on sexual harassment and retaliation that I suffered while working there. I'm, to tell you a little about my story, I'm a single mother. I was born and raised in Memphis, Tennessee. I attended Booker T. Washington High School but I didn't graduate. But I went on later to obtain my GED and I enrolled in a technical college which I had to quit after one semester to find work and support myself and my children. For the next several years I worked temporary jobs through various temp staffing agencies. The pay for such jobs was generally at or near minimum wage.

In April 2008, I started working at one of New Breed's warehouses located in Memphis as a temporary material handler through a staffing agency also. I started out making $11 per hour with an opportunity to become permanent with benefits and pay raise.

At first I enjoyed working at New Breed. Unfortunately the conduct of my supervisor made the job nearly impossible to endure. On a daily basis my supervisor made vulgar, sexually explicit comments and lewd sexual gestures towards the women working in his department. And as a temporary employee, New Breed did not provide us with any training on how to handle these situations. I and the other women in the department asked the supervisor repeatedly to stop his inappropriate behavior, but he didn't.

On one day in particular I was having a rough day so when I told the supervisor, so when the supervisor started in with the sexual comments, I cursed at him and I told him to get out of my face with that conduct, I didn't want to hear it today. He walked away but later that day the temporary agency contacted me on attendance issues. The next day my supervisor began sending me home early, cutting my hours and my pay and within a week my assignment was terminated at New Breed for alleged attendance issues. I had never been warned, counseled or disciplined in any way regarding my attendance before I stood up to my supervisor.

The retaliation didn't end there. After my New Breed assignment ended, the staffing agency didn't have any other placements for me. So I was unemployed for an extended period of time and I decided to enroll in school to support myself and my children. No, I decided to put in an application at another New Breed location in Mississippi that I learned that was hiring for a permanent position which was in Olive Branch, Mississippi. I was hired on June 11th and I began working. In less than two weeks however the New Breed Human Resources Manager learned that I had been working there and she had me escorted off the property and fired immediately.

When I asked why was I being terminated, the only answer given was that they were an at will company. After being terminated for the second time, I realized that there wasn't work available for me and I needed job security to support me and my children. So I enrolled at another local college where I obtained my Associates Degree and license to work as a physical therapist. Today I'm currently employed as a physical therapy assistant at a therapy clinic in Memphis.

The harassment and retaliation I suffered while working at New Breed was an extremely difficult experience and I'm proud that I stood up for myself and I'm grateful that the EEOC has worked to make sure employees are protected in the workplace.

I want to thank the Commission again for giving me the opportunity to come to Washington and tell my story and I'm hopeful that my participation in this EEOC enforcement action can help to prevent harassment and retaliation of other individuals in the future.

CHAIR YANG: Thank you so much Ms. Hines. Mr. Werner.

MR. WERNER: Thank you Ms. Hines. That was powerful.

Madam Chair and Commissioners, it is a great honor to testify again in front of the Equal Employment Opportunity Commission. Time and again my colleagues and I have seen the vulnerability of immigrant and migrant workers to retaliation. The consequence of letting retaliation go unchecked can be severe. Fear of retaliation is the single greatest factor that dissuades immigrant victims of discrimination and other labor abuses from seeking justice. If retaliation is allowed to occur with impunity, so will the underlying discrimination.

While retaliation against immigrant and migrant workers certainly spans the forms of retaliation we see in the non-immigrant workforce, immigrant workers, and particularly migrant immigrant workers, are especially susceptible to retaliation for three principle reasons.

First, abusive employers fully recognize the impact threats of deportation or repealing a worker's immigration status can have on the worker's willingness to remedy discrimination. Second, both undocumented workers and visa holders without portability between jobs, have very limited or even no opportunities for other employment. Therefore while retaliatory termination can have financial consequences for most workers, these consequences are particularly dire for immigrant workers who are unable to participate in the free market of labor.

Third, lack of resources to support a civil society in many source countries makes threats of violence and other harm to the worker and her family and black listing in recruitment networks very real.

I will address each of these concerns in turn. In this discussion I will refer to two types of immigrant workers, undocumented workers and guest workers who are legally present in the United States specifically for the purpose of their labor. However, by function of law, guest workers generally have no real portability between their jobs. Their visas tie them to a single employer or broker. With very limited exceptions, if a guest worker leaves her employer either voluntarily or through termination and remains in the United States, she becomes undocumented.

I'll start with a discussion of threats of deportation. The threat of deportation or repeal of a worker's immigration status or overt steps to start this process against workers who have attempted to exercise their rights under Title VII and other remedial employment statutes is a common theme across many retaliation cases. For undocumented workers, this may be particularly pronounced.

As the Commission is aware, the Supreme Court's 2002 decision in Hoffman Plastics limited the remedies available to undocumented workers who are under certain circumstances subject to retaliation in violation of the NLRA. This decision continues to impact litigation strategies both within government agencies including the EEOC and in the public interest bar.

While the scope of Hoffman Plastics has since been narrowed by the courts, it still presents the danger that employers will present after acquired evidence of undocumented status as at least a partial defense to retaliation claims. Indeed, it remains standard in immigration employment rights cases, including cases I've worked on, for employers to raise Hoffman Plastics as a defense or as a tool for harassing discovery into a grieved worker's immigration status.

In my written comments I describe one case involving retaliation against immigrant workers at Durrett Cheese where after suffering an extended period of harassment and failure to pay wages, they complained to their employer who immediately called the sheriff, which came and arrested them and then turned them over to immigration authorities.

In a court decision that came out from that case, it described that the plaintiffs, when they were arrested, were very fearful of what would happen to them and their families. "They were interrogated for several hours before their attorney was able to secure their release."

If we had not become aware by happenstance of the detention of the Durrett Cheese workers and acted quickly to secure their release and ultimately to pursue civil remedies, the employer would have successfully achieved his goal of making sure these workers had no opportunity to remedy the harassment and wage violations they suffered. This also would have sent a loud message to other workers that they dare not complain. One can only imagine how often this happens unnoticed and undiscovered by advocates and the EEOC.

In the guest worker context, immigrant workers are faced with a somewhat different paradigm. Though they are legally working for their employer, their immigration status is entirely dependent on the employer. Many guest workers also go deeply into debt in their country of origin to obtain the guest worker visa. This combination can be particularly devastating. A threat to revoke a visa or to terminate a worker which would result in automatic revocation of the visa presents guest workers with a Hobson's choice: return to the country of origin to face debts that can never be repaid; seek employment in the U.S. as an undocumented worker; or remain with the abusive employer. This is the exact situation the EEOC is litigating in its case against Signal International, but we're representing the interveners. It is also similar to what happened in the EEOC's case against Global Horizons in Hawaii and Washington.

Another factor is the lack of opportunities for other employment. Threats of termination, in any community with limited employment opportunities can carry a lot of weight. For undocumented workers this prospect of retaliatory termination is especially daunting and I describe one case in my written comments from post Katrina New Orleans.

For undocumented migrant farm workers in particular, vulnerability based on lack of opportunities is compounded by geographic isolation and black listing in migrant streams. Undocumented immigrant women working in the fields face rampant sexual harassment including sexual assault.

In the Southern Poverty Law Center's report, Injustice on Our Plates, researchers interviewed 150 women working in food industries mostly in the fields and poultry plants about their experiences. The report found widespread sexual harassment tolerated because complaining would mean termination and many of the women were single mothers who needed the income to support their children. As one woman explained "they mistreated us. What can we do? Where would we go?"

Another factor which I'll briefly describe is the lack of civil society resources in the countries of origin. Migrant workers from politically unstable countries face an additional layer of vulnerability. With political instability, resources supporting a robust civil society decline, corruption often takes its place and impunity pervades all levels of the justice system.

Transnational migrants returning home or the families of migrants who remain home are painfully aware that threats to themselves and their loved ones will go unpunished, and local law enforcement may even be complicit in those threats. Further, networks of contractors will often exercise near total control over the recruitment market across swaths of territory in source countries. This monopoly, coupled with impunity, give contractors disproportionate power over the transnational migrants they recruit. This may take the particularly pernicious form of assaults, kidnappings and land seizures. However, contractors usually do not need to go to these lengths to silence migrants who seek to protect their labor rights while working in the United States. Rather the black list may be enough.

The North Carolina Growers Association, for example, recruited for and placed H-2A workers at farms across North Carolina. NCGA went so far as to make the black list part of its business plan, effectively barring what they considered to be undesirable guest workers from over 1,000 employers.

The attorney who was representing the workers in a lawsuit that resulted from that described in very stark terms, she said I know of no larger black list in U.S. history. The NCGA black list eclipses even the infamous Hollywood black list in its size, scope and quite likely in the suffering it causes.

CHAIR YANG: Excuse me Mr. Werner. We are out of time but we will make sure that you have additional time in questions.

MR. WERNER: Thank you.

CHAIR YANG: Thank you very much. Ms. Sellers.

MS. SELLERS: Thank you. Chair Yang and distinguished Commissioners, thank you for the opportunity to speak to you regarding the serious issue of retaliation in the workplace. I'm President of an HR consulting firm, SLS Consulting headquartered in Santee, South Carolina, and I've been in the field of HR for 30 years. For 20 years I've been a member of the Society of Human Resource Management or SHRM and I am the State Director for the South Carolina SHRM State Council.

As you may know, SHRM is the world's largest HR membership organization representing over 275,000 members. It's SHRM's mission to proactively provide our members with educational resources on workplace law compliance, effective HR practices and strategic workforce issues. By working with a diverse client base and by conducting investigations over the past decade, I have observed common pitfalls and have addressed many of these observations in my written testimony.

Before we get to the specific recommendations for designing and implementing workplace programs that help prevent retaliation; it is important to address what I believe is the single most important element: the culture of the organization.

To persuade senior leadership of an organization, human resources professionals should make a business case regarding diversity and inclusion. This business case includes sharing a wealth of information already available that shows that having a diverse, respectful culture leads to employee satisfaction, better financial performance and helps negate group think and create quality teams. The communication of diversity must start at the top level of management. This diversity and inclusion culture should be encouraged from the board room to the lunch room.

My written testimony discusses the key elements of an anti-harassment program that includes retaliation prevention, a written policy, proper training and proper investigation. For brevity I'll share with you now our lessons learned on each of these elements.

In our anti-discrimination policy, we ensure that reporting options include at least three different individuals and, when possible, include both a male and a female as well as providing a toll free reporting line where an employee can use it to file a complaint. Again our focus is on to provide as many methods as possible for the employee to file his complaint, as it is in the employer's best interest to learn of and stop the behavior as quickly as possible.

For training, we encourage the employer to use case studies where possible to show application in the workplace and to take the most recent statistics from the EEOC website that discuss the number and type of claims filed during the year. Employers should also conduct separate training for managers to discuss their responsibilities when they receive complaints or witness potentially discriminating or retaliating behavior.

Whether using the latest technology or presenting the material in person, we found that employees need and appreciate a variety of delivery methods such as blended learning with up to date information and realistic examples. Again, it is my belief that this training will not be effective without the proper culture in place.

Delays in conducting investigations also lead to additional complaints of retaliation. Employers should consider designating and training more than one person as an investigator in the workplace to be available if the primary investigator goes on leave.

A final element for discussion with regard to creating an effective retaliation prevention program is clear and consistent documentation procedures. Employers should impress upon their supervisors the necessity for proper documentation. Without it, employees are unsure if they are doing their jobs properly and organizations are putting themselves at risk for discrimination and retaliation claims.

Proper documentation can show consistency in adherence to policies whereas lack of documentation may give the perception of discrimination. Although time consuming, it is essential for employers of all sizes to document discussions with employees regarding employee performance.

While our discussion throughout this testimony is focused on retaliation with regard to Title VII and related discrimination laws, there has been recent interest in the issue of potential retaliation in response to employee pay discussions.

SHRM endorses the opinion that prohibiting an employee from discussing his or her own pay is in conflict with Section 7 and 8 of the National Labor Relations Act. Our firm does not create policies that prohibit employees from discussing their own pay.

In conclusion, thank you for the opportunity to discuss these critical issues. SHRM and its members encourage a continued dialogue with the EEOC on this and other workplace topics. Thank you.

CHAIR YANG: Thank you very much Ms. Sellers. And last but not least, Mr. Brooks.

MR. BROOKS: Thank you. Madam Chair, Commissioners, thank you for the opportunity to speak to you today about the issue of retaliation in the federal workplace. My name is Dexter Brooks and I have the privilege of serving as the Associate Director of the Office of Federal Operations.

EEOC has charged the Office of Federal Operations with two major priorities in terms of implementing appellate processes for employees to challenge issues of discrimination through a complaint process and then secondly, to provide oversight to federal agencies in a goal to make the federal government a model employer.

Retaliation is a serious and ongoing issue in the workplace and one in which EEOC has highlighted in its Strategic Enforcement Plan and its Federal Sector Complement Plan to the Strategic Enforcement Plan. Because of this and in recognition of the fact that the presence of retaliation at any federal agency may seriously undermine its EEO efforts, our office has taken a heightened interest in proactively addressing and remedying retaliation in the federal sector.

Both Commissioner Burrows and Chair Yang have mentioned statistics in terms of federal sector retaliation that about 50 percent at this point of our allegations of discrimination contains an allegation of retaliation and over 40 percent of our findings of discrimination at the appellate level are based on a finding of retaliation. So I won't go too far in the statistics. You'll see a lot of it in my written testimony.

What I want to talk about today is some of the things that we've done in the federal sector to try to better understand retaliation as a concept. Back in 2002, Congress passed a new law, which was the Notification Federal Employee Anti Discrimination Law, which is called NO FEAR as a short acronym, to really put agencies on notice that retaliation, whistleblower protection is important in the federal sector, that agencies have to properly inform employees of their rights and responsibilities.

As a result of the No FEAR Act, we had the opportunity to work with an agency that had a really egregious discrimination case that became the face of No FEAR, and we were able to develop a two day training course for that agency which included a stand-alone module on retaliation. So it gave us an opportunity to try to put it in a practical perspective for managers to help them understand the legal constructs of retaliation.

Also in 2008, the Commission, and our office had an issue of retaliation. It was a class action filed by the Bureau of Prisons within the Justice Department. It was a class action; it was not certified by the Commission but when we looked at the data, we saw that this agency had a higher than average rate of retaliation allegations. Our office did a program evaluation of the Bureau of Prisons with the strict focus on retaliation. So we were able to go to facilities, talk to their employees, get a better understanding, draft recommendations for that organization to address systematic retaliation within that organization and it added to our knowledge base.

In 2013, the Commission approved our Federal Sector Complement Plan. As one of our priorities, we were going to increase education on the issue of retaliation in the federal sector and we've done that through our training courses. One of the things that we did is also partner, new partnerships because when we think of our partner organizations, we reach out to employees who reach out to agencies.

But most recently this fiscal year we started a new partnership with the Federal Management Association. It's the largest and oldest management association of federal managers in the federal government. We had a couple of brainstorming sessions in the fall with FMA's President and the Executive Director, Pat Niehaus and Todd Wells and they came over with our training outreach folks and said what are some of the things we can do to have an impact with federal managers?

Among several things we did in terms of training with their national conference. We also, they gave us the opportunity to write a feature article in their quarterly magazine called the Federal Manager. It's a wide circulation in the federal government. What FMA asked us to do was to take it more from a practical perspective, not just a legal perspective, to help managers understand what are the nuances of retaliation. So in preparing for the article we decided to expand our efforts from just looking at legal compliance. We explored, we decided to explore the behavioral aspects of retaliation that some of the panelists have addressed.

In partnership with EEOC's Office of General Counsel, our newly hired Social Science Research Analyst who is here today, Dr. Mike Siwatu who is in the front row, partnered with OGC's Organizational Psychologist also in the front row, Romella El Kharzazi and they worked on trying to understand what is the behavioral aspects of retaliation looking at personality traits, looking at organizational culture, looking at organizational opportunities and structures that facilitate retaliation in the workplace.

There, some summary of their research is provided in my written statement and they are continuing this effort to look at retaliation. They actually broke it down and provided tips for organizations on how to do more effective training, how to give better notice to management officials, how to do things like real time intervention with a manager. A lot of times we do training and the manager is given this training two years in advance. But when the matter hits, it's so personal and emotional that there needs to be more real time intervention to help managers understand how this works. I know my time has expired but I'm happy to entertain any questions and really appreciate the opportunity to speak to you today.

CHAIR YANG: Thank you so much Mr. Brooks. We will now move on to the Commission asking questions or making any statements that they may wish to. And each Commissioner will have seven minutes for this round of question and comments after which we'll take a brief break and then we'll come back for a second round of questions and comments.

And I'd like to start with a question for Ms. Hines. I know it is critically important for the enforcement of our civil rights laws for employees to feel free to come forward and not to be chilled by fears of retaliation. In your situation, what gave you the courage to tell your story as part of this investigation?

MS. HINES: I wanted no one to suffer the emotional and financial hardships that I suffered in being unemployed and it was the right thing to do.

CHAIR YANG: And after you faced retaliation from coming forward, what was your reaction in that situation?

MS. HINES: I felt like I was at a dead end. So that's what encouraged me to go to school and get a career.

CHAIR YANG: Well thank you very much for taking that courageous step to come forward and tell your story and I do believe that your actions will help prevent discrimination for others around the country. So thank you very much for that.

If I could ask Ms. Sellers, you've talked about the importance of the culture of the organization in preventing retaliation. Where you may have a culture that, where employees do not feel free to come forward, what have you seen to be effective strategies in changing that culture where an employer may recognize that they have a problem because employees are afraid of retaliation and coming forward? What steps can they take to communicate from the top and all the way down that they want to promote people to feel free to come forward to report concerns and that management is aware that this is a priority for the organization?

MS. SELLERS: I've found that basically using the literature that is available, Sheryl Sandberg's, Lean In, there are so many out there that show how when we have a diverse culture these companies are much more successful. So when I am brought in to an organization and as a consultant, yes, I may not be in the organization that just doesn't understand, something has triggered them bringing me in. So when I do come in a lot of that has to do with not just meeting with that HR person, but meeting with that senior level and explaining to them not just the importance of keeping them from having a lawsuit or having some sort of claim filed against them; but telling them and showing them the facts that the companies that do have more diversity and inclusion and a big part of that is having their anti-retaliation training so people can speak out, will help them as an organization grow and be more successful and have better financial numbers.

SHRM has done a lot of surveys regarding employee engagement and we've found that the employees who feel that other employees are being fair and they are being, fair workplace where people are being treated fairly, they have a lot higher engagement than those companies where that doesn't exist.

CHAIR YANG: Thank you. And Ms. Banks, from your experience resolving litigation where you have seen retaliation, have you seen effective strategies that an employer has put in place after learning about a problem of retaliation in their workplace to change that culture?

MS. BANKS: I'm not certain about a wholesale culture change. But I would say that one of the most effective strategies that I think Mr. Brooks hit on in terms of addressing or cutting off at the pass the retaliation that might occur, which I think we all can agree is the better goal, is to actually sit down in person with the person who was the subject of the complaint and talk to them again about the laws regarding retaliation and acknowledge the feelings.

I know you're probably angry. I know this is upsetting. But you need to understand what has to happen here and what can't happen. And I think in those situations we've seen retaliation minimized or you're able to head it off at the pass in that way.

Once there was a claim of retaliation, efforts by the employer typically take the form of training. And whether that's effective or not, I can't say. I will say that I don't see the online training as effective as the in person training and I've heard that from a number of my own clients who work in management roles.

CHAIR YANG: Thank you. And Mr. Brooks, have you seen effective training on these issues of preventing retaliation in the federal sector? Have you seen the kinds of trainings that may work?

MR. BROOKS: The clear answer is I haven't seen effective training just isolating retaliation. I think what we've seen and we haven't been able to study and benchmark it is more training that deals with embedding retaliation into the conflict resolution training that you expect of managers so that they'll understand that this a heightened type of conflict that which, when they're engaging in it, it might create certain emotions and things of that nature.

So if you have a training that's really laid out organic to the organization that looks at the type of organizational structure, and if it's very hierarchal that things are perceived this way, and then embedding it into a conflict resolution training as a part of a total management approach to addressing conflict, it's been more effective than just having the stand alone modules that people talk about the law or they talk about these things.

When you put it more practically into how it may manifest itself in the day to day management, it's been, we've seen it be more effective.

CHAIR YANG: Thank you. And Ms. Buesing, in the time we have left, do you see many employers engaging in training specifically on preventing retaliation?

MS. BUESING: Yes, absolutely, I do see that and particularly in the situation where Lisa mentioned where you have had a claim. But even in the absence of a claim we typically have employers do training on how to recognize and respond to complaints of discrimination including harassment and incorporate within that a segment on how to avoid retaliation claims.

CHAIR YANG: Thank you. And, Mr. Werner, have you seen that, the training and the kinds of work environments where you're representing employees?

MR. WERNER: Generally speaking we haven't. And it's something that I think is, there's a dire need for that among employers who hire immigrant workers.

CHAIR YANG: And, Ms. Jones, in the cases you've seen, how often do you think the employer has engaged in training specifically on retaliation, yet we still see problems?

MS. JONES: Well unfortunately I guess, being a litigator; I don't see that until after the fact. So I would hope that the training is happening before the charges happen and before the lawsuits happen. Of course we look for injunctive relief after our lawsuits are resolved and, you know, the defendants comply in those situations. But, obviously we're discussing the hope that there will be training on the front end instead of the back end.

CHAIR YANG: Thank you. And let me turn it over to Commissioner Barker.

COMMISSIONER BARKER: Thank you Madam Chair, and thank all the panelists again for taking the time to share your thoughts and write up your testimony and come here and give it to us orally. The majority of our, the testimony that we've heard today has focused on private employers. And I'd like to shift the focus to what Mr. Brooks has testified about and that is federal employees. And I ask the question, what is wrong with federal, with our federal agencies and federal employees that the rate of retaliation is so much higher than in the private sector?

And my second question is, why is it that the rate of federal employees who allege retaliation is not only so much higher, but according to Mr. Brooks, if I understand it, the number of times that they're, that reasonable cause is found, is substantially higher than it is in the private sector. I believe it was Ms. Buesing who testified that only 2.9 percent of the allegations of retaliation in the private sector were found, in only 2.9 percent of those cases did we find reasonable cause. So, Mr. Brooks, do you have any thoughts on this?

MR. BROOKS: Sure. So in terms of, I'll start with the second part of your question just to make the statistics more parallel. So when the statistics of cause findings would be the same as findings of discrimination. So the findings of discrimination a rate of, in terms of the total population of complaints that rise to the appeal level and we make a finding, only four to six percent of those are findings of discrimination.

So within that subpopulation of four to six percent which would be equating to cause findings, out of that subpopulation, 42 percent of those findings have an allegation of retaliation. So it's not like 42 percent of all complaints that come to EEOC.


MR. BROOKS: We just took a subset just to look at the findings themselves to see what were the actual bases for the findings. So it's very similar to four to six percent.

COMMISSIONER BARKER: But nonetheless, it's twice the rate as, the, you know, against private employers. I mean and I mean, I don't understand why the number of retaliation charges filed by federal employees should be any higher than in the private sector and I surely don't understand why twice, we should have a rate of reasonable cause findings that's twice that of the private employer.

So there must be something going on with federal employees that, where they not only feel that they're being retaliated against more often but we're finding that they are being retaliated against more often. So do you have any thoughts on that?

MR. BROOKS: So we're studying that. So this is like an, so some of the retaliation and things that came about because of the Strategic Enforcement Plan and our Federal Sector Complement Plan we're starting to study it. What we've seen statistically is retaliation became our top basis around 2008, moving forward and when we look at timelines, one of the things that Congress was very concerned with in the late 90's and early 2000s was do federal employees know of their rights. They thought that there should, possibly didn't know of their rights and there may be more instances of retaliation. So unlike the private sector, we've had statutes, regulations put in place that really make federal employees well aware of their rights and responsibilities. So after that awareness we have seen a rise in retaliation complaints filed.

COMMISSIONER BARKER: Well I understand that, you know, giving them more information results in more allegations. My concern is, what's going wrong in the workforce that they had to make those allegations in the first place. I mean, we may be addressing the increase in numbers and we may be doing some education. But it sounds to me like we've got something fundamentally wrong with the federal workforce where they feel that, and we are apparently agreeing with them, that they are being retaliated against more often than in the private sector.

MR. BROOKS: Right. So in terms of looking at the issues, we have to look at it in a very sophisticated way. That's why it's great to have the social scientists on board because they can break it down in different ways than we think of legally because sometimes people will say, "What's going on in federal government?"

The federal government is a multi-faceted organization. You have agencies where their primary mission, we have a federal grocery store that has thousands of installations around the world. We have federal butchers. So that work environment is different than your traditional office setting that I think people put the federal government.

We have Department of Interior with park rangers who are spending months out surveying lands and things like that --

COMMISSIONER BARKER: Let me ask you this. Are we able to do an analysis of the various agencies to find out which agencies may be the worst offenders?

MR. BROOKS: Right. So that's what we're doing. That's why we're segregating the different populations of the agencies and different missions. So what we're seeing in some of the initial studies and social sciences can provide more detail is that those that have very hierarchal.

COMMISSIONER BARKER: I'm sorry. High what?

MR. BROOKS: Hierarchal organizations where like military, where rank and title matters, you will see instances of retaliation. That's why when we, the evaluation we did of Bureau of Prisons was a very structured warden, this and that and those titles mean something. They take these allegations more serious.

So we're trying to find the different types of organizations that may have the higher allegations in terms of retaliation and look at those especially because we can't say that the entire federal government has problems. But we're trying to pinpoint those types of organizations that we see it manifest more often. That's what we're in the process of doing.

COMMISSIONER BARKER: Do you know at this point what agencies are the worst offenders?


COMMISSIONER BARKER: And is that information, without trying to out anybody today.

MR. BROOKS: If offenders mean allegations we can do it that way. I just want to be clear. We can always track that and see which agencies have the highest rate of retaliation allegations and findings and that's how we would base the list that you're saying in terms of offenders.

COMMISSIONER BARKER: Would you provide that to the Commissioners?



CHAIR YANG: Thank you Commissioner Barker. Now let's turn over to Commissioner Feldblum.

COMMISSIONER FELDBLUM: Thank you. Mostly for Mr. Peeler but perhaps also to Mr. Brooks, do you think there are weaknesses in using our charge data in the private sector or complaint data in the federal sector to determine the level and extent of retaliation that is actually occurring? And if so, what do you think those weaknesses are?

MR. PEELER: I think whenever you look at our statistics you have to be mindful that there are people who are not going to come forward. I mean that's something that the EEOC has consistently said publicly that we recognize that our statistics is only a measure of the people who had the gumption to come talk to us.

And so do we know the exact scope of the problem? No, we don't. But this gives us some indication of what may be happening. I think the other thing to think about is not simply the number of charges but also looking at cause rates and also looking at merit resolution rates because most prudent employers, an employer who has Ms. Buesing as their attorney is not going to take a case all the way to reasonable cause finding.

If they see that there's a problem, they're going to settle that case before we even have an opportunity to make a cause decision. So I think it's important to also take a look at settlement figures, withdrawal with benefit figures and those things.

COMMISSIONER FELDBLUM: My flip question and then I think I'll get back to you, Mr. Dexter, to follow up also. Do you think there are weaknesses in using our data on reasonable cause findings to determine the level of meritorious complaints and if there are weaknesses in that, what would be an alternative data piece to use?

MS. BUESING: I think it's legitimate to use that. What Mr. Peeler is pointing out is that it doesn't pick up people who don't enter the system. But as to the legitimacy of the claims that come into the system, I don't know what else we have. I mean that's what we're relying on. And I would add as he pointed out --


COMMISSIONER FELDBLUM: Did you finish? MS. BUESING: No, but I'm not even sure where I was that caught me so off guard. As Mr. Peeler pointed out, to the extent there is a meritorious claim that comes in, we would do our best to get that resolved and we would ensure that there was effective training on avoiding retaliation as part of the process of resolving such a claim.

COMMISSIONER FELDBLUM: Just to make clear for the record what my question is. My question was about weaknesses of using the charge data to determine the actual extent of retaliation that's going on. And I think you're right that obviously people don't come forward.

I do think it's fair to at least put into the mix that people may come forward with claims that are not meritorious so it's unclear about the level and extent. So that's one question. The other question is, of those that come forward, what is our sense of the level of merit?

And you noted the reasonable cause rate of about three percent. When you said you're not sure where else you would look, I would urge you to look at the data about withdrawal with benefits, settlements, et cetera which is about 20 percent rate, which as Mr. Dexter noted, is about the same level in the federal sector.

MS. BUESING: Although if I understand that data correctly and I am not an EEOC insider, it would include charges where retaliation is a component, not the sole charge. So I'm not sure how that gives you an answer to your question. I can only tell you based on my own experience and that of the management colleagues that I speak with on a regular basis, the bulk of the claims that we see are preemptive, intended for job security and not legitimate.

That's not to say that there aren't legitimate claims. Those people are going to see Lisa. But I'm not seeing the people who are on the other side of Lisa's claims.

COMMISSIONER FELDBLUM: And again, for the record, to make clear that one of the issues, this again goes back to what is the extent of retaliation since those claims are often combined with other claims and again when there's merit found, we don't necessarily know on what grounds they were found. I think it's just incumbent on us as we address a problem to focus on the fact that whatever extent of a problem there is, we as an enforcement Agency need to be responding to it. Employee advocates and employer advocates need to be responding to it. But recognizing the limitations of the data we have in terms of the extent of the problem. I yield back the rest of my time.

CHAIR YANG: Thank you. Commissioner Lipnic.

COMMISSIONER LIPNIC: Thank you Madam Chair and again thanks so much to all the witnesses. Ms. Jones, first of all, I want to ask you in terms of the case that you tried, I wonder if you could give us your thoughts on what it is that the jury found so compelling when you tried that case?

MS. JONES: Well, because it was a sexual harassment and retaliation lawsuit, the sexual harassment was pretty egregious. I think it was something that really jumped out at the jury from the very beginning. And having four claimants in the lawsuit I think also further legitimized the EEOC's position because all four claimants had the same story pretty much.

And so once the jury heard the sexual harassment and saw how quickly the terminations occurred after their complaints, I just, I think that's what really pushed it over the top for the jury. We had very compelling evidence on the harassment and the temporal proximity of the terminations.

COMMISSIONER LIPNIC: Okay, and, Ms. Sellers, I want to go back to the issue about training since this was, came up so much in follow up a bit on the Chair's questions. In the meeting that we had on Monday with, about, of the Harassment Task Force and a lot of testimony about, is training effective or not, which we seem to be hearing a lot about, I want to ask you about, in your experience we've had diversity training right, at least big companies, right, for 20 years, but it seems like; and I'm wondering if we're missing or not quite getting at the respect part, in terms of the culture of the workplace. And I wonder if you could, do you see those as, are they being addressed at the same time? And Ms. Buesing, I would be interested in your comments on that too.

MS. SELLERS: That's very interesting that you mentioned that. In my training, when I do the anti-harassment training that includes retaliation, my first portion of that is actually saying, let's put aside the specifics of the laws first and let's just talk about mutual respect. And I give them some actual, real life case studies. Thirty years in the human resources profession I have plenty of case studies on how perhaps people did not treat each other respectfully. So I use those types of case studies in talking about what is respect.

With the training itself, I think a lot of our problems are that there are some employers who are busy who just want to check the box that they did the training. They pull a film off the shelf and have the same training year after year after year which is not effective.

I think the more effective training is customized. Mr. Brooks mentioned customized training and I think that's important. Unique to that specific organization and in doing that, talking to the HR people, the managers and so forth to discuss what types of incidents have you had here so that we can focus on those to help those employees and the managers understand what we're talking about.

So again, not the same thing each time they do the training. Make it customized and, you know, we've had situations where we do actual role playing, pulling people up out of the audience so they are participating in it, and not just sitting back quietly receiving.

COMMISSIONER LIPNIC: And would you say customized not just to that particular workplace but is there something about, like, do you try to get at sort of what the personalities are that are in that workplace to begin with?

MS. SELLERS: To a certain extent. We can do that by talking about what incidences have they had. And some, when I do come into an organization to conduct the training, I usually meet with senior management as well as the HR people to find out what their culture is like and try to make it interesting for them.

COMMISSIONER LIPNIC: Let me ask before I get to you, Karen, let me ask Ms. Hines do you think that the person who was harassing you, that any amount of training would have made a difference with that person? You can say yes or no.


COMMISSIONER LIPNIC: You think it would have made a difference, that he, that had he been trained that he would have treated you better?

MS. HINES: No, I think that was just his personality.

COMMISSIONER LIPNIC: Do you think that the workplace itself, if there had, you know, that there would have been some difference there in the workplace if --




COMMISSIONER LIPNIC: Okay, interesting. Karen, I would be interested in your thoughts on the training.

MS. BUESING: I am with Ms. Sellers. I think tailored is ideal and yes, I do often do it tailored to the personalities and particular kinds of employers have particular kinds of personality issues. I work with a lot of smaller employers who don't necessarily have internal HR people and have, bless their hearts, CFOs trying to run in that capacity.

And so it's very important, from my perspective, if you're going to have effective training to get buy-in from the most senior people in the organization, typically the owners of the business or the Board of Directors, and it's, I've found it to be very effective by, to share with them their exposure by talking about some of the kinds of cases and some of the awards that have resulted from conduct that might be similar to some of the things that are going on in their workplace. And that usually is very effective at getting their attention.

COMMISSIONER LIPNIC: Can I ask, can I just interrupt you on that? But is there something other than legal liability that makes the point and gets to them about it?

MS. BUESING: There is nothing more effective probably than that. But certainly many employers are motivated to do the right thing and to be the kind of workplace that wins one of those best workplace awards. And many employers are motivated to do that.

But if you don't have that culture already that is concerned about, we want you to be happy, we want you to be, you know, productive and to be a great workplace; you've got to instill it. And so one of the ways to do that is, to talk about the importance of focusing on a respectful workplace because a lot of times these folks are just so busy doing what they're doing, whatever the nature of the business is that they are not focused in the least bit on the human capital, and they simply don't see it until they have a claim and then they have an issue.

COMMISSIONER LIPNIC: I have some other questions but I'll yield back the 17 seconds I have left.

CHAIR YANG: Thank you. Commissioner Burrows.

COMMISSIONER BURROWS: Yes. Thank you. I wanted to pick up on the concept of workplace culture because I really think that is, you know, a large part of the ball game here and from Ms. Sellers I really appreciated the focus on that in your testimony and sort of the lack or presence of a culture of respect being sort of, runs through it.

I'm also really sort of very sympathetic to the idea that you might have a large employer that really doesn't know with the sort of variety of offices what the culture is like necessarily from headquarters in every one of those different field offices or facilities. And I guess a question for you is, if we're focusing on looking at some best practices, how does an employer that say does want to do the right thing either because they've talked to Ms. Buesing and learned that they could be sued up the wazoo or because they just really want to get an reward and they really care but they have, you know, some corporate managers who kind of want to do that, but they actually don't know where they sit overall. It's the first time they're starting to think about that and they don't yet know do they have a good culture or do they have a ton of work to do. So where would you suggest that they would start in even figuring out if you've got a fairly large employer with a lot of different offices what your culture is like?

MS. SELLERS: The key area in determining what culture is like I, first of all I believe would start with communication, not just looking at pieces of paper but actually going, for example, if we had someone who had headquarters in one state and they had multiple offices elsewhere, going there talking to people finding out what's okay.

There are other ways as well that not everybody may be willing to speak to the CEO about what's going on. So there can be employee surveys, employee opinion surveys, employee engagement surveys and then you can look at some of your other data. Exit interviews, for example, why did someone leave an organization or the actual listing of whether or not you've had claims or you've had complaints.

Another area is turnover, and when we look at turnover and there seems to be a higher amount of turnover in one department over another, then that might be a red flag that there is an issue going on in that department. Of course there is some other extraneous information such as it may be a very difficult position; there may be high demand for that position. But that aside, turnover itself could ask us, have us ask some more questions and then we can leap from there to focus groups finding out what's going on.

COMMISSIONER BURROWS: I would put the same question I think to Ms. Banks and Ms. Buesing: from your experience if you've seen things where, you know, either you thought an employer should have been looking and asking that question about the culture or if there are recommendations for how an employer who wants to do the right thing could figure it out. So in whichever order you want to go.

MS. BANKS: Well I would mention that the tailored training is important because different sized employers, different industries are going to have different problems. And I think Karen probably knows that there are some that you can predict are going to have more problems than others and that tends to bear out. I also think in the harassment context we tend to see that a harasser is usually a recidivist harasser.

So the most effective thing you can do because certainly most of your employers are not going to be harassers. But the one or two problem employees are going to repeat that conduct. And so I would, from a plaintiff's perspective say that more effective discipline has to happen up to and including termination in order to clean up the culture in the organization and you're going to have fewer problems.

I think that's less true in terms of retaliation because, as I mentioned before, anybody has the ability and capacity to be a retaliator if they're charged with wrongdoing because I just think it's human nature. And in that case I think getting in and talking to somebody directly helps cut that off.

MS. BUESING: And I would emphasize again that I think most employers want to do the right thing and they want their workplace to function. They want to be productive and that's really what they're focused on. And in these days of trimming belts and cost cutting everything is, everybody is working so hard that, oftentimes particularly in a smaller employer, you don't have the focus on personnel training, on human capital, on what's going on. You don't have the formality of exit interviews. You don't have the ability to retain an outside company like Ms. Sellers' company. And so to get the buy-in sometimes you, from the senior folks to make them understand how important it is, sometimes you really do have to get their attention in ways that you would hope you wouldn't have to.

But again most employers I think really do want to do the right thing. And I think most of them take steps to do the right thing. But you do have some folks who fall under the radar and you have remote workplaces which makes it challenging as you mentioned. There are oftentimes different things going on in different workplaces that you wouldn't necessarily know about, which makes it critically important that we do have effective policies and procedures in place for reporting and for dealing with these kinds of issues when they arise.

COMMISSIONER BURROWS: Sorry, there's my microphone. I was pleased to see, Mr. Werner, that you had some suggestions for the EEOC as well with respect to best practices in the migrant and immigrant worker kind of context. And one question I had for you, I guess it's the same question, I don't know how well it fits; but if you do have an employer that doesn't want to be undercut by folks who are not doing the right thing but also wants to be a good employer and is looking to sort of improve these, what sort of best practices would you recommend to those growers to figure out if there's something going on in there, agricultural workplaces in particular?

MR. WERNER: Yes, thank you for the question. The, in the fields where you see particularly sexual harassment in its worst forms is where you have multiple layers between the grower and the workers. So oftentimes the levels of subcontracting, so you may have a farm labor contractor that's, who hires supervisors who then hire the workers. Under the law, that doesn't necessarily and usually doesn't insulate the grower. And so I would think that the best way for a grower to protect him or herself, would be to hire workers directly and to not rely on the farm labor contracting system which is just, has a history of widespread abuse and it creates more accountability for the grower and provides better lines of communication.

COMMISSIONER BURROWS: I have a follow up on that but I see I'm almost out of time so I'll wait for the second round.

CHAIR YANG: Thank you Commissioner Burrows. Now why don't we take a ten minute break and we'll reconvene at 11:25. Thanks very much.

(Whereupon, the above-entitled matter went off the record at 11:15 a.m. and resumed at 11:25 a.m.)

CHAIR YANG: Thank you everyone. We will get started with our second round of questions. And I will start with a question for Raymond Peeler. If you could, in your testimony you touched upon the fact that differing interpretations of the Supreme Court's decision in Clark County v. Breeden have left workers vulnerable to retaliation if they complain about conduct before the harassment becomes severe or pervasive.

In light of the testimony we've heard today from Ms. Jones and Ms. Hines, can you discuss how important it is to ensure that individuals who complain about harassment are protected from retaliation when a reasonable person would believe that conduct violates the law?

MR. PEELER: Sure. It is really of paramount importance to being able to fulfill the internal complaint procedures that the Supreme Court said employers should have in order to protect their workforce against harassment. If employees don't feel like they can file a claim internally, they can't bring up harassment internally, then the employer is not going to know about the harassment in order to handle it. The employee may be in a position where if they do complain and it's something that isn't yet severe and pervasive, something has happened a few times but it's not something that a court would say is unlawful at this point, but it's the kind of conduct that if it continued would be unlawful; then in jurisdictions where that's not enough for protected activity, then the person is exposed. If they go and file a claim internally, the employer could take action against them for doing that and they wouldn't have any recourse for retaliation.

If they don't complain because they're afraid of harassment, a court could very well say that the employee knew that this conduct was going on; they knew that the employer had an internal complaint procedure; they chose not to take advantage of it and so they forfeit their harassment claim that way. And so they're in a bit of a bind, catch 22 if you will, if that kind of conduct is not protected activity.

CHAIR YANG: Thank you. And Ms. Buesing, from your perspective, don't employers also want employees to come forward, under the Faragher and Ellerth standard to promptly report conduct that they may believe is harassing?

MS. BUESING: Absolutely they do and they want the opportunity to address it. And I think that's, Mr. Peeler referred to a bind. Employers are equally in a bind because if you have, as Commissioner Feldblum said, you have these retaliation charges but if you don't know about the underlying problem, what are you supposed to do to prevent retaliation?

The employee must come forward. And we have, most employers have procedures in place and designated people, and I say people because it's more than one, person to report to in case the alleged wrong doer is the person they're supposed to be reporting it to. And if an employee doesn't take advantage of that process, it really handicaps the employer in terms of being able to respond.

I mean they want to have the workplace function well and they want to nip these kinds of issues in the bud. And so it's really important that employees take advantage of the opportunities to report these issues and give the employer the opportunity to address them.

CHAIR YANG: Ms. Banks, what has been your experience with the current legal standard and whether that provides enough protections for employees who want to come forward early?

MS. BANKS: Well I know from a practical standpoint employees do want to come forward and nip it in the bud as Ms. Buesing says. But they also need to be protected when they do so. And I think what has happened is that when there's retaliation as a result of coming forward, many employers are claiming well, we're glad that you came forward but it wasn't protected activity so you don't have a retaliation claim now that these events have occurred.

And so I think we need to be clear that even though it doesn't rise to the level of a hostile work environment, it's still protected activity to come forward because it's only in that way that Faragher and Ellerth works and that we can enforce the anti-retaliation statutes and protect workers.

CHAIR YANG: Thank you. And Ms. Jones, I was struck by your testimony that Ms. Hines was a temporary employee and the employer did not provide training for temporary employees on how to even make complaints.

And I know with the growing temporary workforce, and particularly vulnerable workers in the farm working industry, that could be an increasing concern that workers may not know their rights or have additional deterrents to coming forward. What has been your experience with temporary employees and their ability to come forward in retaliation cases?

MS. JONES: In my experience thus far it appears that temporary employees are less likely to come forward because they don't understand the protections they may have within that company or they may believe they don't have any protections because they're temporaries. Having the temporary agency also being kind of in between that employer and that employee can create another barrier. They may complain to their, excuse me, their temporary agency, but that temporary agency may not do anything to protect that employee. So I think being a temp employee really creates some additional obstacles that we should hopefully address and try to make sure that they have the protection and that they know they have the protection to complain if they need to.

CHAIR YANG: Thank you. And, Mr. Werner, in your experience, how has the sort of temporary nature of the work affected individuals coming forward?

MR. WERNER: It does have a large effect. I think in the migrant farm worker workforce there's that dynamic also, as I mentioned in my testimony, of not just being temporary with an employer, but when employment is over, returning to the source country. And that creates a lot of logistical challenges in bringing claims and legal challenges in terms of, you know, whether they're able to pursue their claims. So certainly that's a huge factor that we've seen.

CHAIR YANG: Thank you. And I will yield my time. Commissioner Barker.

COMMISSIONER BARKER: Thank you. Well I'd like to focus on Mr. Werner's testimony because while we are all concerned about any employee being retaliated against as Ms. Hines was, I think it's fair to say that retaliation in the private sector is of a very different nature than when it comes to non immigrants and non migrant farmer workers, but just American citizens, you know, going to work, you know, nine to five every day.

What really is troubling me about Mr. Werner's testimony, Mr. Werner, is your testimony about the black listing, because while I had read about that before, I didn't really appreciate the scope of it. And you said that in some black listing, employees are black listed from up to 100 employers. Is that correct?

MR. WERNER: In the case of North Carolina Grower's Association, in the litigation, it came out that it was actually over 1,000 employers that they were black listed against by virtue of one contractor black listing them.

COMMISSIONER BARKER: Yeah, you know, I think that what we need to appreciate is, when it comes to immigrants and particularly immigrant migrant workers, the forms of retaliation that they suffer if they are retaliated against, are so much more heinous or can be so much more heinous primarily because these people are so vulnerable. They have language barriers. They do not have a human resource office down the hall that they can report to. They're working out in isolated fields. They probably never see anybody who works for the company other than the contractor who hired them. And while they may get some sort of basic training initially, the question is, to what extent do they understand it? And migrant workers likely receive no training at all.

So they come to this country. There's a language barrier if they speak English at all, and they get little or no training in their rights, and if they do get that training; do they really rely on this Agency called the EEOC that is not something that exists in their culture? But the worst part to me, and I think this really needs to be emphasized, is that the average employee in the United States who may be retaliated against, it may be subtle retaliation, it may be just, you know, taking away some responsibilities, a demotion, failing to get that promotion or as much as termination. But with the immigrant and migrant communities, if they are retaliated against, it may be retaliation in the form of physical violence, and it may be retaliation against not just them, but their entire families. So you've got one female who comes forward and she complains that her supervisor has raped her, you know, she may face retaliation in the form of she and her entire family may never work again, a whole different ball game from just not getting that promotion that you thought you were entitled to because you blew the whistle on somebody. So is there anything else, Mr. Werner that you didn't get a chance to testify about that you'd like to add to your comments?

MR. WERNER: Sure, just, I, very briefly, a few recommendations and I want to just thank Commissioner Barker for your leadership in the area particularly of addressing sexual harassment of farm workers. It's, I think, given a boost to the movement of people who are concerned about this issue that you've taken this on as an issue.

There are a few recommendations. It would be very helpful I think for there to be some kind of a rapid response procedure in place where, and particularly in a situation where, for example, as I talked about in my testimony, workers are turned over to law enforcement or immigration authorities as a form of retaliation. That process can move very quickly so that it can be a matter of days for the worker to be removed and sent to her home country.

And so there need to be tools in place to stop that process and for the EEOC to get involved and, sort of maintain the status quo at the very least, so that the EEOC is able to pursue these claims. The EEOC has been terrific implementing its protocol in the certification of U visas and that takes away a great source of leverage that abusive employers have over particularly undocumented workers by providing undocumented workers the status they need to remain in the country to testify in their cases.

It would also, I think, be helpful and I don't know whether the EEOC has done this, but to really look at source countries and develop partnerships with NGOs in the source countries and with effective government agencies in the source countries so that unscrupulous recruiters who engage in the kinds of tactics that you have described are prevented from doing so and to prevent, to really promote rule of law so that they are held accountable in their own country, because right now there's a climate of impunity in a lot of the source countries that really needs to be addressed.

COMMISSIONER BARKER: Thank you Mr. Werner.

CHAIR YANG: Thank you. Commissioner Feldblum.

COMMISSIONER FELDBLUM: Thank you. Ms. Buesing, if employees get together and discuss their pay and then those employees are fired, retaliated against, do you think that would be a violation of Title VII or would it only be a violation of the National Labor Relations Act?

MS. BUESING: It strikes me that it would be a violation of the National Labor Relations Act and it would be the sort of action that Employment Management Council would advise against taking if you're talking about terminating people for having such a discussion. I haven't seen an employee handbook in many years that has the old provisions that used to say discussions of pay are prohibited.

COMMISSIONER FELDBLUM: Ms. Banks and Ms. Jones, do you have a sense of whether this would be a violation of Title VII that EEOC should pursue?

MS. BANKS: I do think it would be a violation of Title VII in the sense that you're chilling protected activity. You're cutting off access to the information that would allow for protected activity. And whether or not there is a policy in place, and I think increasingly there are, employers are discouraging employees from discussing pay in the workplace. And that can lead to very difficult circumstances in a situation where an employee believes that she's being paid less than a similarly situated male. She's really forced, if there is a pay policy in place or anti-discussion policy in place from having that discussion to determine whether or not there is a violation. So she's left to file a lawsuit to get the information she needs.

So I don't understand why an employer would have such a policy given that if they are not engaging in discriminatory pay practices, they should encourage the discussion so that everybody knows that the pay policies are fair and they're having the reverse effect of causing employees to file lawsuits because they don't have the information.

COMMISSIONER FELDBLUM: Actually, Ms. Jones, I'm not sure I'm going to put you on the spot as a trial attorney and just go to Ray Peeler instead from Office of Legal Counsel. I mean let's assume there's no policy, but this is simply what happens. Has the Commission said anything that would indicate that this would be a violation of Title VII?

MR. PEELER: The Commission has not addressed this in the '98 Guidance. The one sort of related context where we have is the narrow situation where an employer has a rule about sharing confidential documents and an employee that does not have the right to those documents takes them and then distributes them. And we have in the '98 Guidance said that that is not protected activity.

But in the context of where someone is just having a discussion, we did not address that in the '98 Guidance. And I think that that's awfully factually distinguishable from the position that we took with regard to the confidentiality of the documents.

COMMISSIONER FELDBLUM: Actually, Ms. Jones, I will go to you but you can choose not to answer. Do you think if someone came in with a charge that said there was no policy, I talked with two of my colleagues, you know, two women, one man and, you know, then the next week we were all disciplined for attendance issues and no one else was. We think it was in retaliation for discussing our pay. What do you think our investigators or our lawyers would do?

MS. JONES: Well I think your initial question was, is this a violation of Title VII? And I'm actually not sure. But I do think that that set of facts raises some red flags and I certainly would want the investigator or legal or whoever is looking at this to look closely at what has happened. If it were me, I would do some additional research and look at some additional cases to see where that type of activity has happened because as Ms. Banks has already said, you certainly don't want to create an environment where it can't even be discussed, because equal pay is one of the statutes that we enforce. So it's important that people should be able to discuss it openly without the fear of being retaliated against. So, I'm not exactly sure what I'd do if that charge were to come in, but I certainly would, but take the time to look further into that particular situation.

COMMISSIONER FELDBLUM: Well I think that sort of underscores perhaps one of the things that the Commission should be looking at, so people don't have to repeat the research in every office. A short remaining question, Ms. Banks, I actually was quite struck by your written testimony about HR individuals who come forward with complaints, that they have to have stepped out of their role in order to have a valid claim. That was not something I had heard before. I plan to go back and read those cases. But can you give us an example or two in which an HR person has complained and has found to have a valid, you know, complaint, been retaliated against and been found to have a valid claim? Just an example or two that has not required someone to "step outside the role."

MS. BANKS: The case law or in my own practice?


MS. BANKS: Well, the most recent case I have, and like I said, this is an increasing part of our practice because we see a lot of these HR employees and compliance officials as that role has increased.

I have a client who was working with a law firm in an HR and compliance role, a dual role and had to investigate a charge of sexual harassment by one of the partners in the firm and then had to counsel him as a result of this. And then she was retaliated against by essentially being terminated.

So we took the case. We didn't file a lawsuit but we did engage in substantive discussions and a mediation; and the employer was persuaded that this would be a violation of Title VII for the reasons that I outlined in my written testimony, because I do think that the Crawford decision has cleared the path for that argument and it's a strong argument.

But it's unclear because I think cases go both ways on this issue. And so we do get a lot of resistance. And one of the first discussions we often have when we represent these folks is, this isn't protected activity; they haven't stepped outside their role. And the problem is, the cases have taken it from a point where the FLSA, which has a different definition of protected activity, and imported it into Title VII, not recognizing that there's an opposition clause.

COMMISSIONER FELDBLUM: I'm just going to stop you because my time is up, but thank you.

CHAIR YANG: Thank you. Commissioner Lipnic.

COMMISSIONER LIPNIC: Thank you Madam Chair. Mr. Werner, I just wanted to clarify something in your testimony related to the visa status of H2-A or H1-B or H2-B workers. Are you suggesting that there's some difference in consequences depending on what that visa status is, or is it just visa status writ large for those employees?

MR. WERNER: Well, as between H2-A and H2-B there is, there are differences between the visas but there's not, for the purposes of what we're talking about, there's not really a difference. The single largest factor that makes H2-A and H2-B visa holders vulnerable to retaliation is their lack of portability. So the fact that they're, and this is different from other work visa programs, most other work visa programs where if you look at an H2-A or H2-B visa, the employer's name is actually stamped onto the visa. So the consequence of leaving that employer is necessarily the revocation of the visa. So that creates a very precarious situation for workers who work for abusive employers.

COMMISSIONER LIPNIC: Okay. Thank you for that clarification. Mr. Peeler and a couple of others on the panel, I want to turn to the wild, wild west of social media. And you raised, Mr. Peeler, in your testimony about social media and you said can employee communications on social media be protected activity and can employer communications on social media be materially adverse actions?

So I'd be interested in your further thoughts on that and then actually I'm interested in hearing from Ms. Banks and Ms. Buesing and Ms. Sellers about your thoughts in terms of social media and how that has impacted retaliation cases?

MR. PEELER: So first as far as protected activity is concerned, there was a case from 2013 where an employee put on their Facebook wall, "Anyone know a good EEOC lawyer? I need one now." And their manager saw that comment and not long after that the employee was disciplined. And the court looked at that and said well, that's protected activity because they're showing their intent to oppose. The employer is aware of it and they assumed without doing much of an analysis that that would be protected activity and went on to look at whether or not the actual adverse action was discrimination.

The other piece of that about whether conduct on social media can be a materially adverse action I think is something that goes along with the unique nature of retaliation, because you can have an adverse action that is not necessarily tied directly to your employment. So while I have not seen the case, I can foresee that that could happen.

COMMISSIONER LIPNIC: Ms. Banks, I'll go to you next.

MS. BANKS: I think the question of whether it's protected activity; I guess my answer would be, maybe. It depends on what is posted, whether the employer sees it, is the complaint directed to the employer about a particular practice? In those situations, yes, it's probably protected activity, in my opinion.

In terms of whether a materially adverse action can occur from what the employer puts on social media about the employee, I would think absolutely, in the form of disparagement, defamation, things like that. I think social media has proven itself to be a place where that type of harassment and disparagement occurs more often than we would like to see. So I do think that that would constitute an adverse action.

COMMISSIONER LIPNIC: And let me ask you this and then, Karen, I want to go to you. So do you, because we had a hearing on social media, right and this came up a lot. And is it, you know, some of our hearing on social media was well, these are forms of discrimination and harassment, it's just in another form, right? But is there something uniquely, is it different about social media? Is it just the prevalence of it? Is it that it's easier? Is there something about that? If you have some thoughts on that and then, Karen, I'll go to you, in retaliation context obviously.

MS. BANKS: Yes, well I think it's more likely that what an employer does if it posts something on social media about the employee, it's more likely to be materially adverse because it's so widespread and it's different than the employer making a negative remark to somebody by the elevator. This is something that is distributed widely. And so that's why I think it absolutely can rise to the level of a materially adverse action. It is just a different form. So I think it is a problem in that sense.

MS. BUESING: I cannot imagine ever advising an employer to communicate with an employee via social media. It seems like a bad idea to me. I am going to agree with Lisa --

COMMISSIONER LIPNIC: But what about the individual manager who, you know, on his or her own Facebook page is --?

MS. BUESING: The individual manager should be trained on the appropriateness of how you counsel and discipline and deal with employees and certainly social media should be part of today's training, and I regret that it has become such a big force in our lives, because I think it complicates things immeasurably. I'm going to agree with Lisa --

MS. BANKS: Imagine that.

MS. BUESING: And we do sometimes actually agree. But I think it depends on what is posted by the employee and whether it in fact raises a complaint about a violation of law as opposed to generic, "my boss is a jerk and it's a hostile environment because my boss is a jerk. He's mean to everyone," you know, you've got to be very, very sure of what the person is actually complaining about and then how was the employer on notice, if the manager is aware of this, of a comment and it's directed at the manager in a very public fashion and there is going to be some disciplinary action taken with respect to that employee, the company needs to know what that is and to understand and make sure that there is legitimate non retaliatory basis for that action.

COMMISSIONER LIPNIC: And, Ms. Sellers, did you have, you've got 19 seconds to --

MS. SELLERS: Okay, no pressure. Basically just that when employees do say things about employers on social media, it goes a long way if it's negative much more than, unfortunately, if it was positive. So employers do need to look at it carefully. However, I would probably refer to an attorney before I would encourage an employer to terminate someone based on what was posted on social media.


CHAIR YANG: Thank you. Commissioner Burrows.

COMMISSIONER BURROWS: Yes. I have a question sort of following up on some of what's gone on earlier. I wanted to quickly ask Ms. Hines about temporary employment. I think you mentioned that you had been not just at New Breed but a temporary worker for, at various places. Had you at other places been given training on harassment or anything like that or was it typical not to have that?

MS. HINES: Well, we are told if you have any problems to report to your immediate supervisor. But we were never instructed on if it's your immediate supervisor who is doing these things what do you do?

COMMISSIONER BURROWS: And that was true at other places where you were a temp? That's interesting to know. That's helpful. I am so sorry you had to go through what you did.

For Ms. Sellers I wanted to ask about, I was glad to hear that you mentioned that you are, that SHRM is taking the position in advising folks not to have secretive pay policies, you can't tell your coworkers what you're making kinds of policies. Is that something that is, you know, you're getting feedback and that you've seen folks taking that to heart or is it too early to tell on that?

MS. SELLERS: That guidance has been around for several years. So again you've got the informed employers and then you've got those that aren't members of SHRM and, you know, who maybe just haven't heard. So, is there a need for more awareness? Yes, there is. I do, I am brought in to look at handbooks pretty frequently and I'll do an edit of a handbook. I still see those every now and then, those policies that prohibit people from discussing their wages. And of course I advise them to immediately get that taken out. So there is still some of that around. It's just I think a lack of awareness that as we have interpreted the National Labor Relations Act Guidance we don't think that it is lawful that a person, that a company would prohibit that.

COMMISSIONER BURROWS: Okay. Thank you. With respect to Ms. Banks and Ms. Buesing I guess I have the same question. Have you seen, I think, Ms. Buesing, you maybe said that's in your view uncommon. But do you have any sense of whether or not that's something that folks are paying attention to these days in the employer community?

MS. BUESING: I think Ms. Sellers is correct. Informed employers are aware of it and it's not an issue. And those policies did not have to do with discrimination. They had to do with just gossip in the workplace, you know. It's just disruptive. You're making more than I am even if we're the same everything. It can be very challenging and so I think that was the purpose of those policies. But for quite some time I haven't seen a handbook that includes it. I used to see them all the time that include that. So I do think that most employers, certainly larger employers, informed employers are getting the message, smaller employers maybe less so.

MS. BANKS: I see with my clients not necessarily in the handbook, although I have seen it in a handbook. But I am told by them that they are instructed by their employers that they're not to discuss their pay. And so employees adhere to that and they won't discuss their pay. So it really does have a chilling effect.

COMMISSIONER BURROWS: Thank you. For Mr. Werner I wanted to go back to the suggestion that you mentioned a little earlier and it's also in your written testimony about a rapid response team because one of the, with respect to migrant and immigrant worker charges, because one of the things that we heard, have been hearing continuously, is that if only EEOC could move faster, particularly when you're talking about migrant workers, it would really make a difference. You know, you have folks who are one work site one day and they might be in another state in a couple of weeks. And so I wanted to just drill down a little bit and try to understand a little bit more about your proposal and how you envision that might work.

MR. WERNER: Well, I mean, I would love the opportunity to explore this more in depth. The, I guess, using the example of the Durrett Cheese workers and kind of how Southern Poverty Law Center responded, which was, you know, we just heard about that case just, as I said in my testimony just by happenstance that these workers had been arrested after they hadn't been paid for a long time and complained about it. They were in, put into removal proceedings. We immediately went and met with the workers. We were able to get in to see them. And then we were able to get U visas certified and eventually the workers were released and were able to participate in the litigation. I think a lot of this, we obviously we're not going to have time here to sort of talk about sort of what steps would need to happen. But I think having clear protocols in place about how to handle that and also having relationships within DHS so that workers who are in ICE custody as a result of retaliatory action, that there is a partnership or collaboration with DHS to make sure that they're identified and not removed and are available to participate in the case. So those would be kind of two concrete suggestions I would, could come up with now, but obviously it would require a lot more.

COMMISSIONER BURROWS: And I believe that in the Durrett Cheese instance EEOC was, I think Commissioner Ishimaru's office maybe was involved in some of the U visa. I can't remember if it was --

MR. WERNER: That's right.

COMMISSIONER BURROWS: -- or something like that.

MR. WERNER: That's right. The EEOC certified the U visas.

COMMISSIONER BURROWS: All right. Well thank you. I actually have no further questions and so I wanted to yield back my time.

CHAIR YANG: Thank you. Well I want to thank this panel for your incredibly valuable testimony. We are now going to have some brief closing statements by the Commission and I will again trade places with Commissioner Burrows.

COMMISSIONER BURROWS: Thank you. So once again I wanted to thank all of the witnesses today for providing their perspectives on this critical issue of retaliation in the workplace. I am so grateful for your insights as we seek to figure out how we can do a better job of addressing this.

Working men and women in America need to be able to do their jobs free of retaliation, free of fear. So your testimony today I think will help us get closer to that place. America has robust laws and is very proud of those laws to protect civil rights. We treasure those protections, but these rights are really not worth very much unless we are able to protect people who assert them.

And so I believe that these strong anti-retaliation provisions are the key to effective civil rights enforcement. It's clear that we all have an interest in preventing workplace retaliation for workers. Effective enforcement of our nation's civil rights laws is vital to ensuring they all have an equal opportunity to work hard, succeed and provide for their families and for employers implementing best practices to create the kind of culture of respect that Ms. Sellers described in her testimony will help reduce exposure to claims and bolster the bottom line.

Until we eliminate discriminatory barriers including retaliatory conduct in the workplace, our economy will continue to be deprived of the full benefit of the many diverse talents of American workers. So I think we can and must do better. With the help of employers of good faith who institute the best practices we've explored today, I believe we can begin to reduce retaliation in the workplace. In particular, we must be vigilant to protect our most vulnerable workers, who by definition may be more fearful to pursue their rights and more likely to be threatened into silence.

I appreciate the work, Mr. Werner, that the Southern Poverty Law Center is doing in that regard. We also must recognize and address emerging trends and new retaliatory tactics like company prohibitions on wage discussions which it sounds like maybe are not quite as prevalent, hopefully are going to become less prevalent, that can work to undermine the laws we seek to enforce.

I would again like to thank the Chair and also her staff, Cathy Ventrell-Monsees and Colleen Hampton-Lyster who worked so hard on this as well as my fellow Commissioners. And I hope we can continue to work together to ensure that every workplace is free of retaliation and workers no longer need to endure the kind of harassment and retaliation that Ms. Hines faced at her former employer. So I thank you very much and yield back the remainder of my time.

CHAIR YANG: Thank you Commissioner Burrows, now Commissioner Barker.

COMMISSIONER BARKER: Thank you Madam Chair. I want to thank everybody again for your very excellent testimonies. Mr. Peeler, I thought your testimony was particularly helpful and I really appreciate it. I guess my takeaway from this is two things.

Number one, I'm very interested, will be very interested to see what OFO, Office of Federal Operations does with the information they learned about federal agencies and the worst offenders. And I'm hopeful that OFO will concentrate on those agencies or departments and find out, you know, what's wrong with those working environments and what we can do to try to improve those environments so retaliation does not occur, because if there is retaliation, there probably was some form of harassment underlying the retaliation more than any other type of charge, very concerned about that. Very interested in seeing which are the worst offenders and hope that the EEOC is not on the list. And secondly, my second takeaway is Mr. Werner's testimony. I do think that we need to focus more and more as an Agency on what we are doing for the immigrant and migrant communities and whether we are focusing enough of our resources in that direction because it's, those communities are not going to diminish in size. They're only going to increase in size and the demands for getting them to understand what their rights are as workers whether documented or undocumented, and to be able to rely on us as an Agency. Those challenges are going to become greater and greater.

And I'm very much interested in the recommendations that you made, particularly the concept of a rapid response team because what I think we do look to injunctive relief and that type of thing where there's a particularly pressing issue, I would love to see if we could address that type of litigation the way we do our, you know, our systemic litigation where we have teams of attorneys, particularly bilingual attorneys, who come into wherever that situation is and just take over the litigation for that particular office. But thank you for your emphasis and for your suggestions.

CHAIR YANG: Thank you. Commissioner Feldblum.

COMMISSIONER FELDBLUM: Thank you so much Madam Chair. I want to join my colleagues in thanking all the witnesses. I in particular want to thank Ms. Hines for you and your colleagues coming forward to the EEOC. I think a lot of times people just want to put the bad experience behind them and, you know, not get themselves in a situation where they're actually hearing more about what happened.

Just want to echo in terms of what I said in the beginning, I think employers must be able to use progressive discipline and ultimately termination for employees who are not doing their job. I think employers also must have a culture of zero tolerance for retaliation whether that's reprisal because someone actually went to the EEOC to file a charge or because someone finally told a harasser one day, "Back off, I'm sick of this" and everything else in between in terms of opposing discrimination.

In terms of the first goal of making sure that you can discipline and terminate employees, I have to say that at least my takeaway from our public meeting on Monday about harassment, listening to academics telling us how some training was not only not effective but could be counterproductive done in certain ways, I've come to believe that all that time spent in training might be used training supervisors about how to talk to an employee who is not performing well; how to impose discipline and how to then explain that discipline in documentation. I think that will actually help civil rights in the long run because then we will see when there is discrimination happening because of a protected status.

With regard to the second, ensuring that there's a zero tolerance culture, I think we absolutely need a convergence of government, employers and employee advocates just like we have here. I think we need absolutely effective enforcement so that there is at least the entree of fear of legal liability.

I think employers have to not only have the policy of zero tolerance, but have to quickly have a rapid response of consequences for someone who engaged in retaliation.

We heard on Monday about the idea some companies start with a safety moment in the beginning of every day. Maybe you start with an anti-harassment moment in the beginning of every day.

And finally, having employee advocates engaged, whether it's about educating folks which I know Southern Poverty Law Center does a lot of that or whether there are good plaintiff attorneys like Ms. Banks ready to take those claims when they come.

So thank you Madam Chair for convening this hearing. Thank you Commissioner Burrows, both of your staffs for actually putting this together and I look forward to this hearing helping us make a real dent in this problem.

CHAIR YANG: Thank you. Commissioner Lipnic.

COMMISSIONER LIPNIC: Thank you Madam Chair. Ms. Hines, first of all thank you so much for stepping up and for, our laws completely depend on people like you who are willing to step up. So thank you so much for doing that. Ms. Jones, thank you for your perseverance in this case. I would hate to be your opposing counsel especially in front of a jury.

And I want to say in terms of, I look forward, this testimony I think will be very helpful in terms of any revisions to our compliance manuals. So thank you all for your very thoughtful consideration. I look forward to working with my colleagues on that.

And in terms of sort of where I started, I mean, I am interested and I would sort of ask all of you to continue to think about as we go forward both related to retaliation but our Harassment Task Force about the effectiveness of training and what, where and how we can maybe come up with some better solutions along those lines.

So thank you all so much for your testimony today but most importantly for being advocates in so many workplaces around the country, much appreciated.

CHAIR YANG: Thank you Commissioner Lipnic. And thank you again to the panel for your extraordinary valuable testimony. I wanted to share some of my reflections. I am both heartened by the possible solutions that there are to preventing retaliation. It was helpful to hear from you about the ways in which we can do better in terms of training managers on how to prevent retaliation.

We know that it remains a persistent problem that needs to be a priority for our Agency, and it is a priority for us not just through our enforcement but also because we are an employer, and we want to ensure that we have modeled practices across our Agency and that we're building a respectful and inclusive environment. So one of the best ways for us to ensure we are a model is to hear from all of you and to understand what are those practices that are working, because it's important for us both as an enforcement Agency and as an employer to make sure that we are getting this right.

I wanted to share that in this past fiscal year alone, we have achieved positive results in retaliation charges in over 17 percent of those charges. So we call that our merit resolution rate and that includes negotiated settlements, withdrawals with benefits as well as conciliations. And of the over $296 million in monetary benefits we recovered for individuals through that administrative process, $140.5 million was recovered for retaliation based charges.

And in addition to those data points, I think it's also helpful to consider that many cases are filed in court by private plaintiffs. In fact, there was an interesting study by the ABA that looked at 2013 data and looked at the 15,000 employment discrimination cases filed in federal court and that did not include ADA cases because they were coded separately.

But they found in 77 percent of those cases, the plaintiff had asked for a right to sue. So we did not as an Agency have an opportunity to make a reasonable cause determination. So I think that is another consideration to think about as we look at the data and what that means.

The testimony we've heard today has shown that there is more that we can all do to combat discrimination based on retaliation. We have invested in training and we've reached over 22,000 attendees in over 400 outreach events focused on retaliation, and we want to make sure we are doing that as effectively as possible. So thank you for helping us inform our efforts. I know that your testimony will be extremely valuable as we move forward and I appreciate your willingness to share your experiences and to spend the time that I know it takes to put together your remarks and testimony.

Before we close, I wanted to note that the Commission will hold the meeting record open for 15 days, and we invite members of the public to submit written comments on any issues or matters discussed at this meeting. Those comments may be mailed to Commission Meeting EEOC Executive Officer, 131 M Street NE, Washington D.C. 20507 or it can be e-mailed to commissionmeetingcomments at and that's all one word in the e-mail address.

All comments will be made available to Members of the Commission and to Commission staff working on the matters discussed at the meeting. In addition, comments may be disclosed to the public and by providing comments and 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 would not want made public such as your home address, telephone number, et cetera.

Also note that when comments are submitted by e-mail, the senders e-mail address automatically appears on the message.

So with that do I hear a motion to adjourn the meeting?

COMMISSIONER FELBLUM: I move to adjourn.

CHAIR YANG: Is there a second?


CHAIR YANG: All in favor?

(Chorus of ayes)

CHAIR YANG: Opposed?

(No response.)

CHAIR YANG: Thank you. The meeting is adjourned.

(Whereupon, the above-entitled matter went off the record at 12:17 p.m.)