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Meeting of April 4, 2006 to Consider Recommendations of Systemic Task Force Report - Transcript

The U.S. Equal Employment Opportunity Commission

Commission Meeting of April 4, 2006


NAOMI C. EARP, Vice Chair
STUART J. ISHIMARU, Commissioner



Announcement of Notation Votes

Motion to Close a Portion of the Next Commission Meeting

Systemic Task Force Report

Motions Presented by Commissioner Silverman

Chair Directives on the Motions

Motion to Adjourn


(10:02 a.m.)

CHAIR DOMINGUEZ: Okay. The meeting will now come to order. Good morning and welcome. We are just delighted to have all of you here this morning.

In accordance with the Sunshine Act, today's meeting is open to public observation of the Commission's deliberations and voting. And so 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: Good morning, Madam Chair, Madam Vice Chair, Commissioners. I am 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.

During the period February 14th, 2006 through March 31st, 2006, the Commission acted on seven items by notation vote:

Approved litigation on one case;

Approved resolutions honoring Diane M. Ferrell and Jewell Chapman on the occasion of their retirement;

Approved decisions in Glaude v. Department of Defense and Baker v. Army;

Approved amending ADEA Regulations pursuant to General Dynamics Land Systems v. Cline, and Approved revisions to the Privacy Act Fee Schedule.

Madam Chair, it is appropriate at this time to have a motion to close a portion of the next Commission meeting in case they are any closed meeting agenda items.

CHAIR DOMINGUEZ: Thank you, Ms. Wilson. Is there a motion?


CHAIR DOMINGUEZ: Is there a second?


CHAIR DOMINGUEZ: Any discussion?

(No response.)

CHAIR DOMINGUEZ: Hearing none, all those in favor please say aye.

(Chorus of ayes.)


(No response.)

CHAIR DOMINGUEZ: The ayes have it unanimously and the motion is carried. Well, good morning again and welcome to all of you who are here, not only at the Commission's meeting but who may be watching us through the Headquarters’ monitoring system, and a very special greeting to those of you in our field offices who are viewing these proceedings by streaming video for the very first time. This is the first time that a Commission meeting has been sent to the field by video stream. And so we look forward to your comments and feedback as you can witness this experience along with us. We look forward to that.

COMMISSIONER ISHIMARU: Madam Chair, technical question.


COMMISSIONER ISHIMARU: Is it going over the videoconferencing equipment that we authorized last year? Or is it going over the PCs through the desktops? Do you know?

CHAIR DOMINGUEZ: I'm not really sure. Do we have our IT expert here?

COMMISSIONER ISHIMARU: Well, we'll find out.

CHAIR DOMINGUEZ: Well, we'll defer that. I'm not really sure. They just told me it was being video streamed and I take their word for it, you know. I don't go behind the switch usually. But thanks for asking.

I am very, very pleased to convene this meeting for the presentation of the report of our Systemic Task Force.

Not long after Commissioner Silverman joined the Commission, she and I had a discussion very early on in our time together and we talked about the importance of a systemic discrimination program to the Commission and the importance of having to address that program as effectively and efficiently as we possible could as part of our enforcement strategy.

We talked a lot of about that and, of course, as she has had other priorities including the wonderful mediation initiative that she launched but last year we felt it was time, it was the right time to pursue a review, an assessment, an evaluation of our Systemic Discrimination Program.

And so I asked her and she readily agreed to head a task force that would look into how the Commission could enhance its enforcement in this area.

Combating systemic discrimination is a critical issue that deserves the full and complete attention of the Commission. It is not just the responsibility of any one person or any one group or any one office. It is our shared responsibility.

So it is our goal to develop a program that is truly national in scope. One that approaches systemic discrimination in a way that makes best use of our resources and that involves all of our employees regardless of where they might be located.

Likewise, this initiative must receive full leadership support. And I am committed to making and keeping it vital and meaningful.

The full text of the report will be available after this meeting on the Commission's website. And I think that you will find it to be a very thorough examination of the issues with a host of well thought out recommendations as to how we should proceed.

We are going to address many of those recommendations here today this morning. And first and foremost I would like to extend my personal thanks and appreciation to Commissioner Silverman and to commend her for all her extraordinary work. It is an exceptional piece of work and she really deserves our gratitude and appreciation on a job well done.

And similarly, I want to commend all of the members of the task force, many of whom have traveled to be here with us this morning for just a great, great product. It truly reflects the level of care and commitment and dedication that you have for the mission of our agency. And so we are very grateful for your contributions.

You’ve worked very, very hard and it shows. It is indeed a step forward. And a much needed one.

Before the end of this meeting, a number of motions and directives are going to be presented that I believe will breathe life into the recommendations that are contained in this report so that we can set in motion a stronger and revitalized systemic program.

And so at this point, I will turn it over to Commissioner Silverman. And so please proceed with the presentation of the report.

COMMISSIONER SILVERMAN: Thank you, Madam Chair and fellow Commissioners. I can't tell you how happy I am to be here today to present to my fellow Commissioners the findings and recommendations of the EEOC Systemic Task Force.

As you know, this past year the agency celebrated its 40th anniversary. When Congress created the EEOC, it was imbued with the lofty goal of eradicating discrimination in the workplace. That remains this agency's mission today.

Critical to this mission is the responsibility for identifying, investigating, and litigating cases of systemic discrimination. As the nation's foremost civil rights law enforcement agency, the Commission truly has a unique role.

Under federal law, we are the national repository for virtually all formal allegations of employment discrimination. We have broad authority and access to tools and data that allow us to uncover discrimination even where the victims may not know that discrimination has, in fact, occurred. And we can pursue cases that the private bar might be unlikely or unable to pursue.

We are proud of what we have accomplished over the past 40 years but I think that we can all agree that there are some areas, be they industries, professions, or geographic regions that still have a ways to go.

This task force was charged by Chair Dominguez with taking a fresh look at our efforts to combat systemic discrimination and recommending new strategies for enhancing our systemic program.

Leading this task force has been a challenging and exciting opportunity for me. I’ve had a chance to work with an amazing group of people who are truly dedicated to this agency's mission of eradicating discrimination in the workplace.

In fact, a fair number of the task force members have devoted most of their careers to addressing systemic discrimination in the workplace. And I am pleased to report that almost all members of the task force have joined us here today.

And I would like to take this opportunity to publicly recognize and thank the members of the task force for their hard work and their commitment to this project. And if you feel comfortable, please stand up as I introduce you.

They are Elizabeth Cadle who is the local Office Director in Buffalo; Barbara Dougherty, our Assistant General Counsel for Systemic Litigation Services in the Office of General Counsel; Ron Edwards from the Office of Research Information and Planning; I believe Sandra Hobson from the Office of the Chair will join us later this morning; Tony Kaminski from the Office of the Vice Chair; Gabrielle Martin, who is a Trial Attorney in the Denver Field Office and President of the National Council of EEOC Locals No. 216, American Federation of Government Employees AFL-CIO; Peggy Mastroianni, our Associate Legal Counsel; Mary Jo O'Neill, who is our Regional Attorney for Phoenix; Cynthia Pierre from the Office of Field Programs; Jack Rowe, who is our District Director in Chicago; Jerry Scanlon, the Assistant General Counsel of Litigation Management Services in the Office of General Counsel; Sharon Tejani, who works for the Office of Commissioner Ishimaru; Rosa Viramontes, who is now Deputy Director in our Los Angeles District Office; and last but hardly least, Mindy Weinstein of my office.

I also want to mention that Bobby Simpson, a Trial Attorney from our Louisville Office served on the task force until last July when he left the Commission.

I'm going to spend a few minutes talking about how the task force went about our work and what we found. And then I'm going to talk about the guiding principles that informed our recommendations.

After that, I'm going to turn it over to several of the task force members who will explain the major components of the Systemic Task Force's Report and Recommendations.

Let's start with what we did. The task force began its journey almost a year ago when we gathered together in late April 2005. Our very first challenge was coming up with a definition for systemic discrimination. This was important because it helped ensure that all members of our task force would be in the same page about what it is that we were trying to address.

We defined systemic cases as pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic location.

In our inaugural meeting we then discussed the history of the Commission's systemic program so that everyone on the task force would have an understanding of the different iterations the program had taken on in the past. We discussed goals for a successful systemic program. And the group then considered the strengths and weaknesses of the Commission's current program.

Before proceeding any further, we asked ourselves the fundamental question, is change needed? In light of our previous discussions, all task force members agreed that the Commission definitely needed to change the way it approached systemic discrimination and that a few small changes would not be enough to foster an effective nationwide program.

At the same time, we recognized that before we could offer recommendations to the Chair and the Commission, the task force needed to learn more about why the various systemic programs of the past did not measure up to the challenge and figure out what the barriers are in the Commission's current system. Following that meeting, the systemic task force went into the information-gathering mode. Part of what made this project so exciting to work on was the tremendous assistance and input we received from EEO staff throughout the country.

In May of last year we sent a survey to all of the Commission's District Directors and Regional Attorneys to collect views on the current program, discern which offices and individuals have expertise in systemic investigations and litigation, and to glean what change is needed.

We received a response from every single district. In addition to receiving this extensive written input, we conducted one-on-one interviews with many EEOC employees who perform or who used to perform a variety of the functions related to the systemic program.

We also conducted a series of focus groups, including meetings with staff members from the field who have experience with systemic work such as investigators, enforcement supervisors, managers, directors, and attorneys.

We met with Headquarters’ employees in focus groups, including staff from OGC, OFP, ORIP, and OIT, and with academic researchers.

And we also met with many of our external stakeholders to let them know what we were up to and to get their input.

These included members of the Leadership Conference on Civil Rights, including representatives from the National Partnership of Women and Families, the NAACP, the Lawyers Committee, and other advocacy organizations, the National Employment Lawyers Association, and numerous other plaintiffs attorneys, management attorneys from several firms, several former EEOC officials, representatives from business groups, including the Society for Human Resources Management and the Equal Employment Advisory Council, political and career staff from our sister agencies, the Department of Justice and the Department of Labor, and our FEPA partners.

In addition, to ensure that all of our staff members had the opportunity to contribute their views, we solicited input by e-mail from all EEOC employees.

Last August, the task force gathered for a second time. Over an intense three-day period, our group sat in a conference room together and analyzed the information gathered.

As a result of this work, we learned a lot and came to a number of conclusions about the Commission's current and past efforts at combating systemic discrimination, including what works and what doesn't.

Some things clearly worked. For example, some of our offices in the field have successfully investigated and litigated some significant impact cases such as our race, national origin, and sex discrimination case against Abercrombie & Fitch, our large sex discrimination case against Rent-a-Center, and our coordinated litigation against Wal-Mart Stores under the Americans with Disabilities Act.

Other things are working, too. We learned that the field viewed the reduction in Headquarters’ oversight of the field systemic program that was implemented in the mid-`90s as highly beneficial.

We learned that the expert services provided by our staff in the Office of Research, Information, and Planning, or ORIP as we call it, and by the Research and Analytical Services is helpful, although they are limited in what they can do based on resources.

But in taking a hard look at ourselves, we found lots of areas that the Commission needs to improve. For example, we found that there was a lack of incentives for developing and working on systemic cases. In fact, some of our field staff believed that there were disincentives to work on these types of charges. And we found that some of our field staff believes that systemic cases are not a priority.

We determined that the Commission does not have a nationwide coordinated approach to systemic discrimination. While some offices do a lot of good work in this area, other offices simply don't have the resources or sufficient staff with the right expertise or they have chosen to focus on other priorities.

We found that in general the Commission is not proactive in identifying systemic discrimination. The agency tends to focus almost exclusively on the charges that walk in the door. And we don't have a process in place for looking at the big picture and for using our assessments of employment trends, demographic data, and charge data to focus our enforcement efforts.

In surveying the field and through many discussions with employees we realized that there is misunderstanding and confusion surrounding the Commissioner Charge process.

And we also found that while we have employees who have considerable expertise in systemic cases, there are skill gaps amongst our enforcement and legal staff.

We learned that virtually all of the Commission's systemic investigations and litigation has been conducted in the field raising the question about the best role for the Headquarters to play in a systemic program.

In looking back, we discovered that this is not a new question. Over the years, the Commission has repeatedly struggled to find a proper role for a Headquarters’ systemic program, vis-à-vis our field program.

Finally, the task force found that the Commission has been hampered in its efforts to identify systemic discrimination by certain insufficiencies in the data we collect as well as by our limitations in our capability to use this data.

Now before coming up with a specific plan, the task force settled on a number of guiding principles that we believe are needed to make the plan effective. They are as follows:

Number one, that the Commission needs to make systemic work a priority. From the highest levels down to our front line, all our staff must understand that addressing systemic discrimination is a critical, intrinsic, and ongoing part of the Commission's work.

Second, that the Commission must redeploy its resources and cultivate a nationwide systemic practice. This includes staff, training, technology, financial resources, and incentives.

Third, that the Commission must improve methods of identifying and investigating systemic discrimination.

Fourth, that the Commission's systemic program must address a diversity of issues and basis.

Fifth, that the Commission's systemic program must be nationwide. And by that I mean that the Commission must address systemic discrimination throughout the country, in every district, regardless of where our offices or employees with the most systemic expertise are located.

Sixth, that the systemic investigations and litigation should be performed in the field. Headquarters should play a supportive role, but should no longer house a systemic investigation or litigation unit. As I stated, almost all systemic work is already done in the field.

A number of field offices have substantial expertise and experience in developing and litigating large class cases. And the field is better equipped than Headquarters to do this kind of work. Also, Headquarters doesn't have a pipeline of charges from which they can develop litigation.

The bottom line is there is no need or unique role for a Headquarters systemic unit. But there is a need for an increased Headquarter support of the fields' programs. And we should focus our resources in that direction.

Seventh, that the Commission's systemic program must encourage collaboration, make better use of existing expertise, and cultivate staff to develop additional expertise nationwide.

Eighth, that the field should be encouraged to process systemic cases as appropriate. Now the task force recognizes that some investigations will not pan out as expected.

If review of the information suggests that further investigation is not likely to uncover evidence substantiating the allegations, or that the systemic discrimination is narrower than first anticipated, districts should exercise proper judgment and close or narrow the scope of the investigation.

And finally, nine, that the Commission must redouble its efforts to engage in effective education and training, including outreach to employers on their responsibilities under the federal EEO laws and on systemic trends, issues, and cases to proactively prevent systemic discrimination.

Now based on these principles, the task force developed recommendations designed to improve the Commission's systemic program. All of our findings and our recommendations are contained in the Systemic Task Force Report which, as the Chair stated earlier, will be posted on the agency's website this morning.

Now with that, I am going to turn it over to five members of the task force. Would our speakers now come up and take a seat? They will talk briefly about the primary findings and recommendations in the following key areas: incentives, identifying systemic discrimination, investigating systemic charges, litigating systemic cases, and how we can pull it all together and examine our progress from a national perspective.

I'd like to take a moment to introduce the speakers in the order in which they will speak.

The first speaker on my right will be Cynthia Pierre, who currently serves as the Director of Field Management Programs in the Office of Field Programs. In that capacity, she oversees the field's enforcement efforts. Before holding this position, Cynthia, or should I say Dr. Pierre, as she recently completed her Ph.D., held numerous other jobs at the Commission, including Systemic Investigator in Houston, Enforcement Manager in San Francisco, Deputy Director in Chicago, and District Director in Birmingham.

The next speaker will be Ron Edwards. Ron is a Social Science Research Specialist. He has many years of experience analyzing statistical data in complex cases including the Abercrombie & Fitch case. He currently works in the Office of Research Information and Planning where he provides assistance to field staff on complex systemic investigation and plays a key role in the Commission's research studies such as the studies on diversity in law firms, retail distribution centers, and high-end department stores.

Following Ron will be Rosa Viramontes. Rosa joined the Commission 28 years ago as a Clerk/Typist and most recently was appointed Deputy Director of the EEOC's Los Angeles District Office. Since 1983, Rosa has devoted much of her career to working on systemic cases and developing systemic expertise first as a systemic investigator and then as a systemic supervisor/manager. Rosa will address systemic investigation.

We will then hear from Mary Jo O'Neill, the Regional Attorney in Phoenix. Mary Jo began her 20-year career with the Commission as a Trial Attorney. She later became a Supervisory Trial Attorney and was promoted to her current position in 2002. Mary Jo has been involved in a number of the Commission's systemic cases and has negotiated several nationwide settlements including the global settlement of our ADA case against Wal-Mart. Mary Jo will address the issue of systemic litigation.

And finally we will hear from Jack Rowe. Jack joined the Commission in 1973 and subsequently served as Chicago's Regional Attorney for 13 years before becoming a District Director in 1990. In both capacities, Jack has had numerous systemic victories, including successfully litigating a number of large cases involving race and sex discrimination and entering into the agency's largest conciliation agreements in cases involving national origin and disability discrimination. Jack will discuss the task force recommendations related to the creation of an internal committee to assist and support the Commission's efforts to combat systemic discrimination.

Cynthia, please lead the way.

DR. PIERRE: Thank you. Good morning, Madam Chair, Vice Chair Earp, Commissioners Silverman, Ishimaru, and Griffin. It is my pleasure to be here this morning to share with you some of the systemic task force's findings and recommendations.

The task force believes that in order to combat systemic discrimination effectively, the Commission must promote a culture that encourages staff to look for, recognize, and investigate systemic discrimination.

We certainly have a number of investigators and other enforcement staff who do this already and are quite good at it. Their work in this area has produced many significant settlements and conciliations over the years and sometimes has culminated in major systemic litigation.

Through these efforts, the Commission has obtained relief for thousands of victims of discrimination and employers have adopted new policies and practices aimed at ensuring equal employment opportunity in the future.

However, as Commissioner Silverman discussed, the Commission's efforts in this area are not broad based. As a result, the task force believes the Commission continues to miss many opportunities to tackle systemic discrimination.

The task force believes that the time has come to change the Commission's culture and devote appropriate time, attention, and resources to systemic discrimination.

The task force believes that the Commission should encourage all enforcement staff and all districts to be part of a nationwide coordinated effort to eliminate systemic discrimination.

Therefore, we propose that the Commission direct each district to carefully evaluate how they can contribute to the agency's nationwide systemic program and develop a systemic plan.

The plan, a joint effort of the District Director and the Regional Attorney should outline the actions the district will take to identify and investigate systemic discrimination and describe how they will accomplish this.

The plan could address expanding particular charges, developing Commissioner charges, or initiating directed investigations to pursue possible systemic discrimination. We suggest that districts develop their proposals based on a review of the charge inventory, demographics, economic conditions and other factors in their areas.

We also encourage districts to coordinate and get assistance from experts in the Office of Research, Information, and Planning.

With respect to outlining how the district intends to accomplish the work, we strongly believe that districts should be encouraged to partner with one another. We have offices and staff members throughout the country with particular expertise in systemic cases and we recommend that the Commission capitalize on these resources through partnering and mentoring opportunities.

This will allow the Commission to address systemic discrimination effectively nationwide while at the same time sharing and building expertise in all of our offices.

We recommend that the Office of Field Programs, the Office of General Counsel, and the Office of Research, Information, and Planning, help to identify offices and staff members with particular expertise who can serve as partners and mentors.

Once the plans are developed, we propose that the districts submit them to the Office of Field Programs and the Office of General Counsel for review and approval.

In reviewing the plans, the Office of Field Programs and the Office of General Counsel should ensure that each plan is appropriate for the particular district and that together the plans reflect a coordinated national approach to combating systemic discrimination.

We believe that the plans must require results and may require adjustments to other office goals including goals for inventory management.

Finally, we believe that the Commission should create incentives through performance agreements and other means to encourage the field to identify and investigate systemic charges in accordance with the district's systemic plan. Specifically, we propose that the District Directors’ performance plans incorporate the effective development and investigation of systemic cases.

In addition, the task force recommends that the Commission provide incentives for partnering and mentoring and for developing staff expertise in systemic cases. And we recommend that the Commission reward effective work on systemic cases in our rewards and recognition programs.

As a former systemic investigator, I know that what we are proposing is not easy. It will require continued commitment to realize results from any systemic plan. I believe, however, that EEOC employees are some of the best in the federal government, and with the right support and incentives, we can get the job done. Thank you.

MR. EDWARDS: Good morning Madam Chair, Vice Chair Earp, Commissioners. My name is Ron Edwards and I am a Social Science Research Specialist in the Office of Research, Information, and Planning, also known as ORIP.

I'm here this morning to talk about the task force recommendations related to identifying potential systemic discrimination. We think the identification of potential systemic discrimination is the first crucial component in a strong systemic program.

Given the amount of time, attention, and resources involved in investigating and litigating systemic cases, the Commission must make good decisions about when to launch a full-scale systemic investigation. To do this, we need to have appropriate data and we must be able to use that data effectively.

The Commission has access to information through investigation, our charge tracking system, employee responses to the EEO-1 survey, and the U.S. Census. We also have access to a wide range of labor market data and various journals and studies. We also get information from advocacy organizations, academics, and others, all of which can be extremely useful in detecting potential discrimination.

Based in large part on what our staff and people in the private sector told us, we think the Commission is not using this data as effectively as it could. By making a number of relatively small changes to our technology and the way we utilize our resources, the Commission could greatly enhance its ability to identify systemic issues and become more strategic in rooting out discrimination.

Our first recommendation is that the Commission cross link its data sets to make the data more accurate, reliable, and accessible. Take, for example, the data about employers in our charge tracking system known as IMS.

Because this information is provided by a charging party during intake, it is not always accurate with regard to an employer's proper name, corporate affiliation, or industry code. This makes it harder for the agency to analyze the charge data and determine whether or not systemic issues may be at play.

The information we collect through our EEO-1 surveys is more complete with regard to name, corporate affiliation, geographic, and industry codes. By linking our IMS data with EEO-1 data, we can vastly improve the reliability of our data to better identify possible discrimination.

In addition, we also suggest linking our EEO-1 desktop application with Census data so that staff would be able to conduct Census-based availability analyses.

The task force also believes that the Commission should more fully utilize our unique tools and better identify and track employment practices and trends. For example, field staff told us that the identification process would benefit greatly if the Commission had the ability to flag select issues or bases or employers or industries of interest in the IMS system.

A flag would alert field staff to potential systemic issues early in the charge process for appropriate follow up. Electronic flags could also allow the Commission to better track specific practices or trends.

We also think that the Commission should focus some of its resources specifically on identifying economic and labor market factors that have systemic implications in following up with enforcement staff.

We recommend that ORIP regularly analyze relevant data and produce user-friendly reports that alert our staff to regional and national economic trends. Along these lines, the task force also recommends that ORIP augment its research studies in a manner that will help identify areas where systemic enforcement is necessary.

Finally, the task force recommends that the Commission encourage its employees to use the available data to pursue possible systemic discrimination. The investigation of individual charges should be expanded to address systemic issues where appropriate. But when we find possible systemic discrimination through glaring statistical imbalances or broad policies that appear to violate the laws we enforce and these problems are not being addressed by individual charges, staff should pursue possible Commissioner Charges or directed investigations.

So in order to clear up some misconceptions and help educate our own staff, we recommend that the agency issue guidance explaining the procedures for initiating and investigating Commissioner charges and directed investigations. The guidance would also clarify the type of evidence and information that typically should be included in the Commissioner's charge.

We also recommend that the agency educate new Commissioners about the Commission charge process and encourage them to work closely with the field when considering possible Commissioner Charges.

Finally, we note that many of the task force recommendations related to identifying potential systemic discrimination, concern technical enhancements and additional support from Headquarters. However, we recognize that it is our field staff that is in the best position to decide when a systemic investigation is appropriate.

They are the people who interact with charging parties in community organizations and they, the field staff, have the most knowledge of local economic conditions. The task force tried to find ways to assist these front line employees. We wanted to make it easier for them to test their investigative instincts and we wanted to give them the information and tools they need to make decisions about when and how to pursue possible systemic discrimination.

MS. VIRAMONTES: Good morning. My name is Rosa Viramontes. I'm the Deputy Director in Los Angeles. I'm here to highlight some of the task force recommendations related to systemic investigations.

To begin with, we think the agency should focus on enhanced systemic expertise among enforcement staff. Systemic investigations are often quite complex. They involve voluminous amounts of evidence that may be stacked up in boxes or contained in unfamiliar electronic files. They often involve complicated statistical and/or legal analysis. They may pose significant challenges in locating, tracking, or interviewing hundreds of witnesses or aggrieved persons.

While some of our investigators have the skills and expertise needed to identify and investigate systemic discrimination, the Commission can do more to develop expertise in numerous areas including how to identify systemic discrimination from the intake stage and on forward; to determine what evidence is needed in a systemic charge; to conduct a basic statistical analysis; to work with electronic information; to manage records; to track and communicate with a large number of witnesses; to conciliate systemic charges; and to use available tools and resources, including the EEO-1 desktop program, Census data, spreadsheets, and software, such as SAS and BRIO.

To develop staff expertise, we recommend pairing employees who have already proven they have performed high quality work on systemic cases with less experienced staff through partnering and mentoring.

We also suggest that the Commission conduct both formal training sessions as well as informal case-based training once staff begin working on a particular systemic charge. In addition, we recommend that EEOC partner with outside agencies and groups to increase training opportunities.

The task force believes that investigators also need more resources to assist in systemic investigations. To that end, we think that the Commission should develop a systemic manual and should collect and create sample documents to be placed on the internal website in a section devoted to systemic discrimination issues.

The task force proposes that the agency support greater sharing of information about systemic cases by creating a mechanism such as an electronic bulletin board or a listserv where investigators could pose questions about systemic charges and get feedback and sample documents from other investigators or attorneys.

We ask that the Commission enhance technology in support of the systemic investigations program by making it easier to run reports based on IMS data, enhancing the EEO-1 desktop, and improving the search function on our internal website. We also recommend ensuring that staff in Headquarters and the field have access to necessarily subscription services, journal articles, and other tools.

Because systemic investigations are incredibly time and labor intensive, the task force recommends that the Commission address staffing issues in the field. The Commission needs to ensure adequate investigative staffing to perform systemic work, particularly in offices that partner with less experienced offices.

We also recommend that the Commission create and fill at least five GS-13 lead investigator positions. We believe that these positions should be filled with incumbent staff who, based on their demonstrated expertise and quality work on systemic cases, would travel within and outside of their districts to serve as mentors and team leaders on systemic investigations.

We think that creating this position will allow the Commission to perform higher level work in more offices, retain highly skilled staff in a critical investigative role, give less experienced investigators the opportunity to learn at the hands of those who know how to do this best, and enhance a culture of excellence at the Commission.

Because our proposal will generate increased systemic activity in the field, we believe the Commission needs to improve enhanced Headquarter support by increasing the number of social science experts to the extent that resources allow.

As you know, there is currently a small complement of experts in ORIP who provide critical assistance to field investigators. They conduct statistical analyses, help draft complex requests for information, and help analyze evidence in systemic charges.

At least some of the additional expert staff should work out of the offices in the field. We also recommend that the ORIP's expert staff, working on systemic cases, be consolidated.

The task force also suggests that the Commission redeploy some Headquarters staff to the library. The library is an invaluable resource for the field because staff there can conduct useful research about industries or companies and can help the field locate missing witnesses or possibly aggrieved persons.

The task force also has some recommendations designed to encourage coordination in systemic investigations. We believe that the Commission should reemphasize the importance of close coordination between legal and enforcement on the development and investigation of systemic charges.

We also recommend close coordination among offices in the field and between the field and Headquarters. Districts should share priority issue lists with other districts. Staff in the field and Headquarters should identify and coordinate the investigation of similar claims against the same respondent.

We believe that the flags in IMS that Ron Edwards mentioned earlier should greatly assist with coordination between offices. The task force also proposes closer coordination between EEOC and its sister agencies on systemic charges.

The Commission should expend efforts to partner with state and local Fair Employment Practice Agencies on systemic investigations by sharing information or conducting joint investigations as appropriate.

We also should coordinate more closely with the Office of Federal Contract and Compliance Programs and the Solicitor’s Office at the Department of Labor and with the Department of Justice.

Finally, based on comments we received from the field that some A-1 charges are sent to the mediation program without the concurrence of the District Director and the Regional Attorney, and because systemic charges ordinarily should be categorized as A-1, we recommend that the agency reaffirm that Directors and Regional Attorneys should concur before sending A-1 cases to mediation.

In conclusion, the task force believes that by enhancing expertise, providing the right tools and resources, addressing staff issues, and ensuring closer effective coordination, the Commission can ensure a highly successful investigations program. Thank you.

MS. O'NEILL: Good morning Chair Dominguez, Vice Chair Earp, Commissioners Ishimaru, Silverman, and Griffin. I am Mary O'Neill. I'm the Regional Attorney from the Phoenix District Office and I'm tickled pink and very happy and proud to be here as part of the task force to talk about the systemic task force recommendations as it relates to litigation.

We really have three main recommendations as to litigation. Number one, how do we staff these cases? Number two, what is the role of Headquarters in supporting the fields' program? And number three, technology to support the litigation program. And at the very end, I will add a few additional remarks to reemphasize a couple of the things that some of my colleagues have mentioned as they relate to litigation.

With respect to staffing systemic cases, as you know, historically we tend to staff the case where it was investigated. And we believe that we can be more effective, we can be more strategic, we can capitalize on our strengths and resources better. We ordinarily do this where the case is filed, where it was investigated, and for most of our litigation, that works terrific. People are there, witnesses are there, and that works well.

In a few larger cases, we have deviated from that and we have coordinated that and we have partnered with offices. The Wal-Mart cases have been mentioned, the Abercrombie case has been mentioned. But those have really been the exception, not the rule.

So in speaking to some of our own staff, and certainly in speaking with plaintiffs' attorneys around the country and defense attorneys around the country, including some of our opponents in some of our big cases that we have handled nationally, we realize that we should really rethink the way that we staff cases, that it makes more sense to be more strategic and to put the right people in the right cases.

So we want to put people with particular expertise in the litigation. Some of the defense attorneys have noted that they believe we’ve been disadvantaged because we haven't made better use of our resources and of our expertise. That is a telling note.

Attorneys from some of the national law firms have also told us that they used to staff their cases based upon where it was filed, that the Houston office would handle a Houston case. And they changed that approach so that they are looking at expertise around the country. So they will pick somebody with a particular expertise in an industry, somebody who has particular expertise in statistical information, somebody who has expertise in managing a large volume case.

And that's the way that many of the national law firms are staffing their cases. And we believe that especially with the current technology, that this really makes the most sense for us to function most effectively. We think that this national law firm model would work terrific for us.

If you really think about it, the Commission is the nation's largest law firm devoted to civil rights, and we should act like a national law firm. And we really do have attorneys in the Commission right now who have particular expertise in areas. We have attorneys who have particular expertise with particular industries, with statistical information, with managing large cases, with attorneys who have expertise with the ADA or the ADEA or the EPA, the list goes on with the kind of resources and talents that we have in the Commission right now.

And we also have paralegals who have expertise in managing these large cases, managing large documents, managing electronic discovery.

So the task force recommends that the Commission maximize our resources and enhance our effectiveness by staffing the cases with the right people who have the right experience for the particular case. We think this approach will also have the added benefit of fostering greater collaboration and communication between legal units and between legal units and Headquarters.

And it will really foster mentoring and teaching less experienced lawyers, less experienced paralegals with more experience. That kind of cross-pollination is a very effective training tool in the Commission.

Next I would like to address the function of Headquarters in systemic litigation. As Commissioner Silverman mentioned earlier, the task force recommended that instead of investigating and litigating systemic cases, Headquarters really has a very critical role in supporting the field systemic investigation and litigation programs.

The Office of General Counsel already provides critical substantive and technical assistance to the legal units in our litigation. And we believe that OGC can expand their role. They could be enormously helpful, for example, in identifying experienced attorneys in a particular area that is needed in a case, either substantively or to resolve some of their other expertise. And they can really help us model the national law firm with this kind of coordination.

OGC can also provide enhanced litigation support services to the field in systemic cases. We believe they already have this capacity, OGC has this capacity but it is not necessarily always utilized by the field, or even known by the field the kind of expertise that really is in Headquarters.

OGC could be particularly useful in electronic discovery matters involving discovery and involving the trial. This would be the use of computers and they could help us get electronic data such as e-mails, use litigation support software, and present electronic information at trial.

Because these cases often involve voluminous documentation and the work in the district sometimes ebbs and flows, it would be incredibly helpful -- and economical -- if OGC could provide assistance in the litigation support function of scanning and indexing documents to put them in an electronic format.

Our third major recommendation is that the Commission beef up its technology to support systemic litigation. And this would make us really function as a national law firm. With the right technological support, we can operate as a national law firm from a distance. Attorneys and paralegals from different offices really need to be able to collaborate and share electronic information seamlessly. To do this, we must have common share drives and litigation support software that will work on the wide area network.

In addition, we recommend that OIT consult with OGC on possibly purchasing additional software for large litigation cases such as Concordance, Summation, and Ringtail. This sophisticated software is commonly used by the private bar, both plaintiffs and defense, in almost all of our cases. So we are outgunned in that way now. It would be an invaluable tool for us in our systemic litigation to be able to have these tools to use to be more efficient and more effective.

We also recommend improvements to OGCNet. OGCNet is a shared e-mail system among the lawyers within the Commission in Headquarters and in the field. It allows lawyers to put in questions, propose questions and issues, and to get feedback from their peers. It is a terrific tool.

We think it is a wonderful tool and could be made even more useful if it was enhanced. For example, if we could change it so that we could search for topics, you would look up protective orders or whatever.

Finally, I would like to go off on a few of the items that were mentioned by my colleagues because they pertain to litigation as well. As Cynthia Pierre said, we believe that it is critical, it is essential that we have appropriate incentives in place to support the Commission's systemic program.

The Commission generally found strong support for this systemic litigation program from attorneys in the field and in the Office of General Counsel, but we certainly think that the agency should encourage systemic work through performance plans and other means.

We think that the effective development and litigation of systemic cases should be placed in the Regional Attorneys' performance plans and that the agency should encourage legal units to contribute to the national program of combating systemic discrimination through partnering, mentoring, and other methods of collaboration.

We want to point out that in encouraging a greater emphasis on systemic cases, it is likely that the EEOC, we hope that the EEOC will file more systemic cases, but fewer lawsuits overall, given our limited resources. But we think this is really the way to go.

Shifting resources from the individual or small class cases to larger systemic cases will allow the Commission to be more strategic, more effective in accomplishing its mission while utilizing our limited resources more efficiently.

I also want to echo Rosa Viramontes' comments about the importance of enhancing staff expertise. In order to function as a national law firm, we think that we will help enhance the expertise with collaboration and partnering between districts. That part of training - is really working on a case together.

We also think the lawyers and other legal staff could benefit from the training and development that Rosa mentioned earlier which would include training on statistics and software tools and those things that we would use together. We also would recommend that the agency enhance expertise in areas that are unique to litigation, including technology and complex litigation issues.

Finally, we would recommend staffing enhancements in support of the fields' systemic litigation program. Systemic unit suits involve voluminous documentation that must be organized and analyzed as well as large numbers of potential claimants that need to be interviewed and identified.

The task force found that while many plaintiffs' firms employ at least twice as many paralegals as they do attorneys, EEOC legal units average only one paralegal for every three or four lawyers. And that many of those paralegals spend the vast majority of their time responding to Freedom of Information Act requests.

We recommend increasing the hiring of paralegals and the creation of a GS-12 litigation support specialist position to support the higher level of work required to support systemic litigation. Often times, the most experienced paralegals have gone on to become investigators because it allows them to go to a higher grade. And this is a critical position for us to be effective in systemic litigation. Thank you so much.

CHAIR DOMINGUEZ: And you are wearing pink so it is very consistent with being “tickled pink”.


CHAIR DOMINGUEZ: We will hear from Dean Rowe now.

MR. ROWE: The senior member of the panel. Chair Dominguez, Vice Chair Earp, Commissioners, my colleagues, I'm Jack Rowe. As my colleagues have just spoken about, our task force set out a blueprint for reinvigorating the Commission's systemic program. Under our plan, the Commission will embark on a strategic nationwide effort to uncover and address different issues and bases of systemic discrimination. And we believe the Commission must make combating systemic discrimination the responsibility of all EEOC employees.

Because this work involves staff throughout the agency, including employees in the field, Headquarters' staff in the Office of Field Programs, the Office of General Counsel, and the Office of Research, Information, and Planning, just to name a few, the task force decided against creating any type of systemic czar.

We do not believe it will serve the Commission well to have one individual or one department responsible for overseeing this effort. Instead, we have depended upon the Commission's existing resources throughout the field and in Headquarters to create the underpinnings of our new systemic program.

However the task force did recognize that there was a need for something more to ensure that the agency's effort to combat systemic discrimination will be effective, diverse with regard to issues, bases, statutes, and geography, and enduring. To ensure that the systemic program meets this goal, the task force recommends that the agency create an internal committee which, after much deliberation, we named CASE, the Committee of Advisors for Systemic Enforcement. You can't be in the federal government without getting those acronyms straight.

Before I talk about what we envision for CASE, let me be clear what CASE would not do. CASE would not perform an oversight function or create an additional layer of approval or management for the field. Rather we are recommending the creation of CASE to serve as a useful source of assistance and support.

To that end, CASE would review our agency's systemic efforts to see if they are nationwide, strategic, and diverse. It would evaluate our systemic program's success from a national perspective and report back to the Commission with the status of the Commission's systemic efforts, an assessment of the areas that the Commission should address more efficiently and effectively, and strategies for addressing potential areas of enforcement.

CASE would also be a resource to assist the field with identifying and pursuing systemic discrimination and to assist the folks in Headquarters who may seek out CASE's advice on systemic plans, the new website and manual, or other tools and training.

The task force recommends that CASE be comprised of a cross section of experienced EEOC staff from both the field and Headquarters. We think there should be no more than nine members, including a District Director, a Regional Attorney, a mentor or lead investigator, a trial attorney, and personnel from ORIP and OGC and OFP. Obviously we think that the members should be selected based on their systemic enforcement experience and expertise.

That concludes my remarks. And I would like to say it is a great pleasure to be here and participate in this project this morning. Thank you.

COMMISSIONER SILVERMAN: And that concludes the task force's presentation. I want to thank the panelists.

And I turn it back over to Madam Chair.

CHAIR DOMINGUEZ: Thank you very much Commissioner Silverman and panel members for just a very comprehensive and thorough set of findings and recommendations.

I will now allow for statements, comments or questions from my fellow Commissioners beginning with Vice Chair Earp. Madam Vice Chair?

VICE CHAIR EARP: All I can say is Wow! I had a briefing a couple of weeks ago and I have read through the report, and I thought I had a sense of how comprehensive it was. And then listening to the presenters this morning, there is a whole different dimension hearing it coming from specific areas of interest.

I have just a couple of things and a couple of questions that I want to share. First of all, again, I want to thank Commissioner Silverman for her leadership and thank the Chair for her support of this effort. And thanks to the task force members for your courage and for your perseverance.

As I was reviewing the report over the last couple of weeks, I had several thoughts and I'd just like to share a couple of them with you this morning.

First, clearly the report is comprehensive. One key improvement is to our fundamental technological infrastructure such as the ability to link IMS, Census data, and EEO-1 data. If we can do this, it will not only address general issues in the systemic program, but such improvements, I believe, are very likely to also specifically improve the quality and perhaps the quantity of high impact cases alleging race and color discrimination which is one of my focus areas.

This critically important initiative could come and go but I think the way you are addressing it structurally and organizationally ensures that it will last.

Second, any good organizational change book will tell you that a sense of urgency is important to the kind of major change initiative that we have outlined in this report. Like I said, I thought I felt the sense of urgency reading it. This morning sitting here, that sense of urgency is practically overwhelming.

It seems to me like we are not only identifying, we are heading off a potential crisis. And that we have to keep the momentum going in order to avoid missing any potential opportunities.

Based on the report, the briefing I received, your presentation this morning; the task force addressed these issues without, I think, any preconceived notions of what the outcome would be. I am aware that some may believe that there was a predisposition to eliminate the systemic branch, but the report, to me, clearly is about so much more than repositioning one branch in Headquarters.

There was a full discussion of perceived problems with out systemic investigation as well as litigation approaches. We talked to external as well as internal stakeholders. And there was also an intense data gathering stage before the recommendations were vetted.

No matter what individuals may have gone into this exercise believing, it seems to me that the outcome is not only a credible business case for change, but I hope that the report will serve in some way as a validation of our future funding needs. At a minimum, I hope it will help us justify future budget requests.

The next thought is that through a thorough examination of one of our key programs, we have found what works and what doesn't. I think this is good not just for systemic, I think it is good for all of what we do. If the program needs to be tweaked or given a total overhaul, we can and we should do that rather than allow a weak program to hamper our efforts.

Finally, I just want to again applaud Commissioner Silverman for her thoughtful selection of the task force members. I know that the larger the group, the more time it takes to get things done. I know diverse points of view can be wonderful for the sake of diversity and the energy it creates. So I thank you again. I think you struck a wonderful balance, and you completed a solid report. Thank you very much.

I wanted to just ask -- pick up with Mary Jo one question. You mentioned perhaps filing fewer cases. And that was also one of the questions that has kind of been in my mind. The unintended consequence of an initiative like this could very likely be a perception by the little guy, the little woman, that charge, that individual charge, that individual case that we are no longer really interested, that we are not likely to investigate those.

Are you certain we can avoid that perception? Or how will we address it during the transition phase?

MS. O'NEILL: Well, in terms of investigating the cases, you know I think we have the ABC priority charge processing process. And, of course, we have the mediation program which I think is just perfect for most individual cases frankly.

So I think that there are a lot of other kinds of processing options. I just wanted to be frank and I think the task force wanted to be frank that we will be filing less numbers of suits, although I think we will be getting benefits for more victims of discrimination. And we will also have the ripple effect. I mean something like a Wal-Mart, something like an Abercrombie, something like a Morgan Stanley, has an effect on the victims in that particular case, but it also has an educational effect. It has an outreach, you know, effect on other employers in that industry and sometimes in different industries. The EEOC went after this business for this particular policy. It makes them look at their own policies and it has an impact.

So I think this is the right way to go. I think that we have to be careful in how we sell this program frankly and how we handle it within each office. But I think we are going to get benefits for more victims and we are going to have a bigger impact in terms of the ripple effect based upon the lawsuits. I do.

VICE CHAIR EARP: Okay. Thank you.

CHAIR DOMINGUEZ: Thank you Madam Vice Chair.

Commissioner Ishimaru?


I ran into the Chair yesterday afternoon and told her how excited I was about having this meeting today. It is a great testament, I think, to your vision, Madam Chair, in forming the task force in the first place and having Leslie chair it because you really have done a super job as we've seen.

You know we all talk about wanting full enforcement and wanting broad enforcement and doing it right. And I've been pleased during my tenure here in knowing that my colleagues and I share in this view.

And for all the talk of this, today's task force report really puts meat on the bone. And I think that’s very, very important.

So to you, Madam Chair, and to you, Leslie, congratulations. This is an excellent job.

I think the process leading up to this report was really first rate and really serves as a lesson to this body of how we -- if we want a great result like this, of how we should conduct our business. The task force heard from a wide-ranging view of members, had an open agenda, didn't have any preconceived notions, or if it did, it worked through it. And I think, you know, we all come to the table with our own notions, but this process helped us work through it. And I think that was very important.

By soliciting opinions from this broad range of people, of not being afraid to hear about the problems of having frank discussions, I think those benefits are clearly evident in the report. When I've talked to colleagues from various groups on all sides of these issues, they’ve been impressed with the breadth of the discussion and how uninhibited it was. And I think that has served us well.

In an ideal world, an open process really improves the process and really increases the acceptance of the outcomes, the buy-in from our people. This is one of those cases where both of these hoped-for outcomes have come to pass. And it is truly an excellent product. And I think it really will make the agency a central part of large-scale efforts to enforce employment discrimination laws.

We sometimes style ourselves as the leading federal civil rights enforcement agency. I think that is true. And I think this effort here will truly make that happen.

And, you know, because of the process, I think it’s received strong bipartisan support as well. This was not made into a partisan issue, everyone was at the table. We worked through issues; everyone gave a little and took a little. And I think the end result is a wonderful one and really is a shining star that we should be very proud of.

There are three parts of the report that I especially want to stress. One of my overriding concerns with this issue and with the systemic enforcement work here, and one I've raised in numerous discussions, both formal and informal, with Leslie is how do we coordinate this from a national picture, from a big picture, from a national law enforcement agency perspective?

So when I got the report and read it, one of, you know, my concern was who is going to be doing that? There is no czar created by the report. And there is no new set of managers to do that. And there is no office created. And I said who is going to do that?

I went to my staff and I said there is something missing here. And my staff talked me down and Commissioner Silverman talked me down. And, you know, I understand how the big picture work, the coordination work will be done by a number of offices, by our friends in ORIP who really have a large part of this work as they analyze trends from charge data, from Census data, from EEO-1 data, from other data. There is a huge chunk of this, of identifying possibilities of where discrimination continues to exist.

The Office of Field Programs, the Office of General Counsel, the District Directors, the Regional Attorneys are responsible for creating these systemic plans that obviously are the lynchpin for success of this.

And finally, the creation of a new acronym, of CASE, C-A-S-E, a group of talented employees who will look at and advise but not manage, clearly not manage, but who will look at and advise the work that goes on with our systemic work and see and recommend where we might do more work and see it from a national basis.

I think the formation of this group will help us focus from a broader picture because it is too easy for us to focus, I think, on our work that is in front of us. And we all do that. We all focus on our own issues. And by being set up in districts, we can't help but be focused on the work that is in front of us. But I think CASE gives us an opportunity to step back and look at the broader picture. So I am optimistic that it will work. Obviously the people doing work in all these various offices will have their work cut out for them and their hands full, especially for those who will serve on CASE.

Secondly, I know when the systemic task force met for the first time, my fellow Commissioners and I and the Chair had the opportunity to talk with them. And I remember this vividly, we were in the tenth floor conference room having a chat.

And, you know, a number of people asked me during my time with them what sort of resources would be made available. And it struck me at the time that, you know, I wondered whether this was going to go down the typical road of people saying, you know, well, we can't get any more money, there is nothing more we can do. But it didn't.

I know that I and my colleagues told the members that they should go forward and come up with recommendations and not worry about the money because frankly we don't have a whole lot of control over that. The future year budgets, the out year budgets will be what they be. And we don't have any control over that.

And I think the recommendations from this report do an excellent job in balancing these concerns. They come up with recommendations that are helpful and feasible. It is not pie in the sky nor did it hold back. It really dealt with structural issues that needed to be addressed. And I think for that you should be commended.

So, you know, an office could arrange to deal with the numbers that it has to deal with as a management matter. I know I have had ongoing discussions with my colleagues and with the various offices here about the use of numbers. And I believe that as managers, people need to use numbers as a management tool.

But numbers aren't fixed. And numbers are a tool. And just that. And an office can arrange to lower its charge resolutions goals or outreach goals or some other number in order to free up investigators to work on systemic work.

I think it is critical to the success of our systemic work that we realize and accept, as Mary Jo said, that some of our numbers in other areas may need to be adjusted beyond litigation, that numbers are a tool and not an end of itself.

That is simply the nature of our work. And given the budget realities that we live in, we have to try to get as much as we can with what we have. And numbers may have to be flexible.

Finally, the task force is recommending the creation of a systemic investigator position at a higher grade level. And I commend you for doing that. I think that we should look to reward people for doing this extra work and for taking on additional responsibilities. This work obviously is very hard. And for people who excel at this, I think we should use incentives like that to say thank you. Quite often we don't say thank you enough because we are tied up in our everyday work. And rewards such as increase in grade levels, I think

is an appropriate tool to be used wisely and I commend the group for recommending that.

But of course the report is just the first step in what will be a long process. It won't be an easy process. No one has come here and said this is the magic bullet, by voting on this today, we will be done with it. This really is the first step. And I am delighted that we are taking this step.

But a true test of the recommendations will be in its implementation which is, as always, going to be difficult. We are clearly on the right path by having a set of motions and directives today that we will be voting on shortly. I'm glad we are setting it up this way. I think this is a good way for all of us to participate and to really embrace the recommendation of Commissioner Silverman's task force.

And I was pleased when I saw the recommendations or the motions and the other directives that have been worked out that they cover all the major points of the task force report.

It would have been easy to cherry pick. It would have been easy to say we'll do X, Y, and Z, but we are not going to do M, N, and O because those are too hard. The list that we are going to be voting on that the Chair has agreed to implement I think captures the spirit of the report as a whole. And I think that is a very commendable posture to be in.

But for a project as sizable as this one, the devil really is in the details. How the plans are developed, how much leeway we give to our offices to use the resources for systemic work, how the team concept is actualized, how much weight we give to CASE's recommendations, how much we reward systemic work, and how we train our employees. This is a large task, especially given current budget constraints.

I share the Vice Chair's sense of urgency as a measure of success and of trying to bring about success. Clearly to me I believe that all of my colleagues here want these changes to work and for this process to succeed.

And as a measure of our commitment to this and so that we remain publicly accountable, I think at some point after the end of this fiscal year we should hold some sort of follow-up public meeting to find out how this process is going, to get reports from the various components of the agency to find out where we are in the process of meeting the Chair's directives and the Commission's motions.

Of course, we wouldn't do this to discuss internal matters or matters under investigation. Obviously that is information that we would not disclose at a public meeting. But I think it would be informative for us as a body and for the stakeholders who have expressed tremendous interest in this process to get an update from where we are on the issues we have talked about today.

So I hope, Madam Chair, we can have some sort of agreement informally that at some point after the end of the fiscal year and after, you know, a chance for this to get started, we know that it is going to be difficult, that we meet again in a public meeting and we hear back from the structural components of this that things are in place, that things have been done. I think it is good government for us to come back and say we've done X, Y, and Z. And we are going to see where it works and we are going to see how it goes. And there may be further tweaks along the way but this is really excellent work. And, you know, Commissioner Silverman and her hardworking staff - Mindy just did a yeoman's work in making this happen. I know my office was delighted to work with them. It was a wonderful process. And I commend you because it is really a job very well done.

Madam Chair, I have a couple of questions. Can I ask those?


COMMISSIONER ISHIMARU: I'll start down the line with Cynthia.

The Office of Field Programs will have the responsibility of getting the systemic plans developed by the various districts. When they come to you, Cynthia, how is your office going to scrub the individual plans to make sure that they have a balance within them, at least when they talk about, you know, we want to focus on certain issues, what if somebody came back and said, you know, the biggest problem in our district is sexual harassment. You know it is just rampant. And we want to focus there. Hypothetically speaking, would you push them to create more of a balance in looking at various systemic issues? Or do you let them go with what they came in with even if it was unbalanced?

DR. PIERRE: Right. One of the things the report calls for is that the Office of Field Programs issue guidance for development of these systemic plans before they are actually submitted. And I would expect that in the guidance that we develop, we would encourage and lay out criteria for the plan itself. And we would expect that the offices do address a diversity of issues, industries, demographics, and geography within their district in terms of coverage for combating or addressing potential systemic discrimination in their districts.

COMMISSIONER ISHIMARU: And do you have any feel now where you might expect offices to ask for a break in their other goals, the types of things that they may do less of, say getting a break on individual resolutions or doing somewhat less outreach or different outreach? Do you have any feel for how that might go?

DR. PIERRE: That’s an interesting question. We looked at -- the Directors will be presenting to us what they believe they can do with the resources they have in their districts. We know already that the district that is most understaffed right now in terms of investigators actually has the largest class and systemic program. And we have the district that is the most overstaffed -actually doesn't have a systemic or class program for the investigators.

So it is not just the resources but how you actually deploy what you have and the commitment within the office to pursue this type of discrimination. So it will be interesting to see. COMMISSIONER ISHIMARU: Indeed. Thank you.

A couple other questions, Madam Chair, if you will indulge me for a few more minutes. Mary Jo, you know one question that always comes up when I go visit offices around the country is the pride people take in the work that they do there. Did you talk about how you get beyond the culture of, you know, this district, this office working the case? How does it go beyond being a Phoenix case to being a nationwide case, you know, where everyone can share credit rather than, you know, one office sharing credit?

MS. O'NEILL: Sure. I think it’s a challenge. But I think it is like expanded pride, you know. That's the only way I can explain it. Working with 13 offices in the Wal-Mart, and I coordinated that, I've got to tell you, that was just a wonderful experience. I mean you realized that there is such incredible talent and passion out there. And that we all learn from each other. I mean I worked with the Chicago office on an Allied Signal case. We both learned. Everyone expected that I would learn because they were Chicago.


MS. O'NEILL: No offense, this was not Jack, this was my colleague John Hendrickson. But they learned, you know, that we have quarterly meetings with all of our class members. That was like kind of a shock. I mean when you work together there are all sorts of benefits. I mean you make new friends, you make new colleagues who you can call up and talk to. I think it is just sort of an expanded pride. And so I don't think, you know, there is anything diminished. I actually think there is a synergy to it. And it can be just a terrific thing.

So that is my thought. And that is really what I anticipate, is that we are going to learn from each other and that we have a lot of talent out there and that it is just expanded pride.

COMMISSIONER ISHIMARU: Well, I hope you are right. I think you are right as well because I found from some of our larger cases like Morgan Stanley and Abercrombie & Fitch that people around the country, our people take great pride even if they did not work on it directly, in the work that the Commission, as an agency, was doing. And so I hope you are right. And I think the changes that have been laid out in the report are ways to make this happen.

One last question to Jack about CASE and about the role of CASE. Can CASE serve as a help to the Commission as a body to monitor whether the recommendations in the report are being carried out? Can that be something that CASE can do?

MR. ROWE: I think that’s absolutely something that we anticipated. In making this recommendation, it was our notion that this is a group of experienced people. They’ve been around the block a few times. They are capable of advising the Commission as to the progress we are making, as to gaps in the progress. And perhaps make some recommendations for further tweaking the system.

But I think we all anticipated that this sort of subgroup of the task force or whatever, this is a group of the size that can get something accomplished in the short run and yes, we look forward to it playing this monitor role.


I thank the panel. I thank you Madam Chair. And I hope we can look forward to follow-up meetings at an appropriate point in time in the not too distant future. But I know Leslie and I have talked about this and she obviously does not want to do this too early but I think, you know, this is great work that we should not let go of. And we should make sure that it is fully carried out. My thanks to you, Madam Chair.

CHAIR DOMINGUEZ: I agree with you Commissioner. I think we do need to get updates and progress reports. Thank you very much for your comments.

Commissioner Griffin?



COMMISSIONER GRIFFIN: I'm going to actually ditch my prepared comments and go right to the questions because I have a whole bunch of those. I also -- I want to congratulate the Chair and Commissioner Silverman and Mindy specifically and all of you on the task force for the work that you have done.

Every public interest law firm really grapples with this issue, you know the whole balancing of systemic, individual, how do we do it. And historically this Commission has grappled with it as well by evidence of remarks even Bill Brown made at the 40th anniversary of Title VII. He talked about what they did to figure that out, how to allocate resources.

But this seems like the first time in the Commission's history there has really been a really good comprehensive look at how we do things and really how to change things. And how to, I think in the words of the Chair, how to really make Headquarters support the work of the field, because that’s what this building, this group at Headquarters should be doing. It should be -- everything we do should support the work of people in the field who are enforcing the laws that we are responsible for enforcing. So congratulations to everyone that worked on this.

Cynthia, when you really -- and you have answered this somewhat but when -- the district offices, right now how do they balance? Is there anything that they do right now? My sense is not given your answer to Commissioner Ishimaru about some offices do it, some don't, that type of thing. So there is no formal mechanism in place, is that right?

DR. PIERRE: No formal mechanism for what?

COMMISSIONER GRIFFIN: To balance systemic with, you know, the individual cases.

DR. PIERRE: Correct. Correct. And this was the reason that we were proposing some incentives to encourage directors who are not doing it to pursue systemic discrimination by redeploying or reallocating their resources because we know some directors have been able to figure out the balance.

We are recommending that we encourage the partnership and mentoring of offices who have developed this expertise, have figured out the balance, to work with offices who have not done this yet in order to help bring everybody up.

COMMISSIONER GRIFFIN: Okay. There has been probably some preliminary discussions with District Directors about this. Can you share any of their responses or feedback that you are getting from them?

DR. PIERRE: I don't --

COMMISSIONER GRIFFIN: Are they all as happy about this as we are?


DR. PIERRE: Right now I think is the first time the directors are hearing the full set of recommendations. What has been discussed with them up to now have been the findings of the task force. And they have agreed that the findings were accurate.

So we have -- you know we will wait to hear now what their reaction is to the set of recommendations and directives today. But from the directors that are on the task force, we believe that there will be a positive reaction.


Jim, can you tell me right now how many employees are in the systemic unit?

MR. LEE: Yes, Commissioner, at the present time, we have one associate general counsel, one assistant general counsel, one supervisory general attorney, three trial attorneys, two paralegals, two investigators, and one secretary.

COMMISSIONER GRIFFIN: And how many cases have been filed from the systemic unit here in the last five years?

MR. LEE: In FY `03, there were no cases. In FY `04, there were no cases. In FY `05, there was one case. And in FY `06, there has been no cases to date.

COMMISSIONER GRIFFIN: All right. I guess we don't have to make more of a case for why we should be doing this than that.

Rosa, can you explain a little bit more about what the role of the GS-13 lead investigators will be?

MS. VIRAMONTES: Sure. The GS-13 investigators are individuals who have already proven themselves to be able to do quality work. They have already worked on large systemic cases.

So then because of their expertise, they would be leads in the field to coach and mentor investigators that are less experienced on pattern practice cases. They will also serve to design training on systemic investigations. And also to provide that training. So they would be leads, coaches, mentors.

COMMISSIONER GRIFFIN: And will they -- they will be located -- let's say, you know, there are five great investigators out there that we know, you know, should be the lead investigators. Will they stay where they are and then just move around as needed? Or --

MS. VIRAMONTES: Yes. They can stay wherever the office is where they are at now. But they would be pooled in this -- kind of this national law firm perspective that we were talking about to work on cases as they are needed. And they could travel outside of their district depending on where the case is.


COMMISSIONER SILVERMAN: In fact we envision that if we had two really qualified people in the same office, they could both serve in this lead role. The idea is that with technology and with traveling that they could travel and help out other offices to cross pollenize and to share our expertise.


VICE CHAIR EARP: Commissioner Griffin? I'm sorry.


VICE CHAIR EARP: I wanted to follow up on one of your questions.


VICE CHAIR EARP: Litigation has a history currently of working together, spotty though it is, across district lines. And the culture in litigation, I presume, is somewhat different than the culture in enforcement.

So first of all, does enforcement have some history of working together across district lines? And how easy do you think it’s going to be to move investigators to a national model?

MS. VIRAMONTES: Well, it wouldn't be, of course, all investigators but rather only those that have that expertise in terms of working on large pattern practice cases, working with investigators who are also interested but don't have that expertise.

We’ve done that on a couple of cases in our office in particular, working with Chicago on the Abercrombie cases, you know. And that worked very well. We, you know, divided up the roles, who is going to do what, and it worked very well.

We are also working with San Francisco on another case currently where we are dividing up roles. And it really helps a lot. You are able to do more because you are able to share in the development of the case.

COMMISSIONER GRIFFIN: I think it’s an exciting opportunity for all the investigators, too, you know not just the lead ones but everyone to be able to work on cases with other offices. I think, Mary Jo, your experience of how great that was is really --

MS. O'NEILL: Yes, teaching John Hendrickson is --


MS. O'NEILL: He’ll deny it, but it is true.

COMMISSIONER GRIFFIN: Mary Jo, when you talked about your experience with the Wal-Mart case, I know a lot of people say there, you know, there aren’t really systemic cases under the Americans with Disabilities Act and we know that’s not true for the railroad case, the genetic case, as well as the Wal-Mart case. You talked a little bit about your experience and how positive it was but what do you think you can take from that to enhance, you know, the vision here of doing cases like this nationwide?

MS. O'NEILL: Great question. Well first of all, we are stronger when we are coordinated. I mean if we are all on the same page in talking to each other - defendants in litigation like nothing better than the fact if we don't talk to each other. We've dismissed this exact issue in this office and we are going cause and doing a systemic case in this office on the same issue. So we are more -- we have more credibility. We are more effective. And we are stronger if we are coordinated. We get better settlements. We get better results if we are coordinated. That's the main thing about working together.

I think that we always learn from each other when you are working. You know two heads are better than one. Five heads are better than one. You are always thinking of better ideas and being more effective like Rosa said. You can divvy up roles and you can do more. You can do more discovery. You can handle all the depositions. I mean when Morgan Stanley, when they were getting ready for trial, Elizabeth Grossman sent out an e-mail to all the lawyers in the country and said we're going to trial. Can people digest the depositions?

Well, lots of us took those depositions and digested them over the weekend for her. You know we are stronger and better if we work together. And it’s wonderful. I mean it is very invigorating. And it makes everybody more excited and happier to be at work which, you know, if you are growing professionally and you are growing intellectually and you are doing great work, what fun is that. You know it is just lots of fun.

COMMISSIONER GRIFFIN: That's great. I love the analogy to a national law firm. I think that is really what this agency should be more like. But I think the technology enhancements are the key to that happening. So I think -- I echo what Vice Chair Earp said that it has to be done, and it has to be done today.

Jack, your office is probably one of the best in the country with regard to systemic litigation. Have you thought about like what already, because you have been involved in this for the last year, so have you already thought like what can an office like yours do to support this nationwide effort?

MR. ROWE: We have given that some thought. And we have a limited band of experience in working together. Actually, a piece of it occurred beginning two years ago when, by accident of fate, I became the Director of the Milwaukee District Office as well as the Chicago District Office. And I was able to coordinate with the Director of each office pretty well. And so we --

COMMISSIONER GRIFFIN: And you didn't need those technology enhancements at all did you?


MR. ROWE: Mind meld was working fine. But we put folks, investigators from the Chicago district and from the Milwaukee district together on several investigations that concerned regional employers. And, again, it was absolutely positive. The people enjoyed it.

And, you know, when it came time to do Abercrombie & Fitch -- and I say this is not only a matter of two offices, but in each office from the beginning of the investigation, this was really the ideal. This was lawyers in the legal divisions working with the investigators in the enforcement units in both offices. And you really had four often competing for glory and prestige, four operations that functioned as one. And it was a sight to behold.

And frankly, if we are ever going to reach the point where all of us across the agency, we are glad, we celebrate because EEOC did something good, we need to get past that my office, your office thing that we have been involved in for, you know, 30-plus years. And in order to do that, I think we have to have cases of the scope that are notable on a national basis. I mean that tends to be where the deterrence comes in.

COMMISSIONER GRIFFIN: That's exactly right.

MR. ROWE: You have to be noticed, I guess. And it’s very difficult in small units, in individual district offices to do that.

So another piece that responds, I think, to a degree to this question. As of about 18 months ago, five of the directors just on their own motion and having discussed this for a lot of time, began to meet to see if we could coordinate individual investigations among our offices.

That’s an ongoing project. We have been meeting for the last ten months. Every one of this -- this is New York, and Washington, and Chicago, and San Francisco, and Los Angeles -- every one of us has more than one shared investigation case in operation now.

COMMISSIONER GRIFFIN: Well that's great.

MR. ROWE: It is entirely positive. We all have learned from each other. And we get better results.


Ron, one last question. Based on your experience, what do you think are going to be the most critical training needs for the field staff in identifying the systemic cases and developing them? And, thinking from your point of view as far as the data, so what do we need to do and how are we going to actually train people in using it?

MR. EDWARDS: Well, I think we still need to train people on staff on the tools that they already have in terms of the EEO-1 desktop application. There are a lot of investigators that use that tool but there are still a lot that are not comfortable using it. We have statistical packages out there for them to use like the EEO Stat and there are still a lot of investigators that are a little nervous about using that tool.

And then once we are able to link EEO-1 and IMS and make that data more readily available, that will be another tool that they will have to have training with. So that will all contribute to their ability to identify potential systemic discrimination, those three, all those.

COMMISSIONER GRIFFIN: Okay. All right, great. Thanks.

And you, Jack, just one last thing on the CASE. How it is structured right now, it is a collateral duty, right? I mean --

MR. ROWE: Absolutely.

COMMISSIONER GRIFFIN: -- this isn't going to take over and become --

MR. ROWE: We can't afford to lose any people than what we are doing now.

COMMISSIONER GRIFFIN: Exactly. So I just wanted to clarify that this is going to be just a collateral duty of all these folks.

MR. ROWE: Extra duties as assigned.

COMMISSIONER GRIFFIN: Exactly. All right. Great. Thank you very much.

CHAIR DOMINGUEZ: Thank you, Commissioner.

And before we conclude this aspect of our meeting today, I know all of you will join me in a round of applause to thank Commissioner Silverman and the staff.


COMMISSIONER SILVERMAN: I just wanted to stop and thank you for giving me this incredible opportunity to lead this and to work with this group of people. It has just been fantastic. Thank you, Madam Chair.

CHAIR DOMINGUEZ: And before we begin the next part of the meeting, I would move that we take a ten-minute break. Do I hear a second?


CHAIR DOMINGUEZ: All in favor?

(Chorus of ayes.)


(No response.)

CHAIR DOMINGUEZ: The ayes have it. Let's take a ten-minute break.

(Whereupon, the foregoing matter went off the record and went back on the record following a brief break.)

CHAIR DOMINGUEZ: All right. The meeting will now be resumed once again. It will come to order.

And at this point, I am going to ask Commissioner Silverman to make her motions. Commissioner Silverman?

COMMISSIONER SILVERMAN: I move that the Commission be firmly resolved to promoting a culture at all levels of the agency that supports the identification, investigation and litigation (when necessary) of systemic cases, that is, pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic location. To that end, the Commission requests that the Chair take those actions necessary to promote a reinvigorated systemic program at EEOC by enhancing incentives for identifying, investigating and litigating systemic cases, providing additional opportunities for training and the development of expertise related to systemic discrimination, and improving access to technology that supports the systemic program.

CHAIR DOMINGUEZ: Is there a second to the motion?


CHAIR DOMINGUEZ: Is there any discussion?

(No response.)

CHAIR DOMINGUEZ: Hearing none, all those in favor please say aye.

(Chorus of ayes.)


(No response.)

CHAIR DOMINGUEZ: The ayes have it and the motion is carried and approved unanimously.

CHAIR: Commissioner Silverman, please make your second motion.

COMMISSIONER SILVERMAN: I move that every district should contribute to the Commission’s systemic program through the identification, investigation and litigation of systemic cases. In conjunction with this, the districts should be instructed to develop Systemic Plans to ensure that the Commission is identifying and investigating systemic discrimination in a coordinated, strategic, effective agency-wide manner. The Plans should describe the specific steps each District will take to identify and investigate systemic discrimination, including partnering with offices or staff in other districts.

CHAIR DOMINGUEZ: Is there a second to the motion?


CHAIR DOMINGUEZ: Is there any discussion?

(No response.)

CHAIR DOMINGUEZ: Hearing none, all those in favor please say aye.

(Chorus of ayes.)


(No response.)

CHAIR DOMINGUEZ: The ayes have it. The motion is carried. The motion is approved unanimously. Commissioner Silverman, please make your third motion.

COMMISSIONER SILVERMAN: I move that the Office of General Counsel (OGC), the Office of Field Programs (OFP), and the Office of Research, Information and Planning (ORIP) be instructed to work in a coordinated fashion to support the Commission’s efforts to address systemic discrimination by providing assistance and advice to the field offices; facilitating the sharing of investigation and litigation expertise among the Districts; and developing incentives to support and promote the systemic program.

CHAIR DOMINGUEZ: Is there a second?


CHAIR DOMINGUEZ: Is there any discussion?

(No response.)

CHAIR DOMINGUEZ: Hearing none, all those in favor please vote aye.

(Chorus of ayes.)


(No response.)

CHAIR DOMINGUEZ: The ayes have it. The motion is carried. And the motion is approved unanimously.

Commissioner Silverman?

COMMISSIONER SILVERMAN: I move that Systemic Litigation Services (SLS) and Systemic Investigations and Review Programs (SIRP) in the Office of General Counsel be eliminated and that the Office of General Counsel portion of EEOC Order 110.002 be revised to reflect this change; that systemic investigations and litigation be conducted in the offices in the field; and that prior to the effective date of the elimination of SLS and SIRP, staff in SLS and SIRP be reassigned to other positions commensurate with their skills and expertise.

CHAIR DOMINGUEZ: Is there a second to the motion?


CHAIR DOMINGUEZ: Is there any discussion?

(No response.)

CHAIR DOMINGUEZ: Hearing none, all those in favor please say aye.

(Chorus of ayes.)


(No response.)

CHAIR DOMINGUEZ: The ayes have it. The motion is carried and approved unanimously.

Commissioner Silverman?

COMMISSIONER SILVERMAN: I move that the Chair direct that a Committee of Advisors for Systemic Enforcement (CASE) be established. CASE should not serve as a management function, but should assess the agency’s overall effectiveness in combating systemic discrimination and serve as a resource on systemic matters.

CHAIR DOMINGUEZ: Is there a second to the motion?


CHAIR DOMINGUEZ: Is there any discussion?

(No response.)

CHAIR DOMINGUEZ: Hearing none, all those in favor please vote aye.

(Chorus of ayes.)

CHAIR DOMINGUEZ: Those opposed?

(No response.)

CHAIR DOMINGUEZ: The ayes have it. The motion is carried and is approved unanimously. Commissioner Silverman?

COMMISSIONER SILVERMAN: I move that the Chair direct the Office of Information Technology (OIT) to analyze Task Force recommendations 66 through 92, contained in the Systemic Task Force Report, to identify the items already implemented or in progress and to develop an action plan that includes a timeline for the collection of requirements from the Task Force and relevant offices, a feasibility analysis based on the requirements, and the development of cost and resource estimates needed to implement system modifications or new systems. Priority should be given to the following items: linking IMS data with the data from the EEO-1 Survey to allow users working in IMS to access EEO-1 data automatically; creating a mechanism for placing “flags” in IMS to identify issues, bases, industries, and employers of interest; integrating Census data into the EEO-1 Desktop to allow staff to construct Census-based availability estimates; creating a mechanism such as an electronic bulletin board or listserv to facilitate communication among staff; and ensuring that the technology framework supports staff in different offices working together effectively on systemic cases (via common share drives, litigation support software that can be used across offices, etc.).

CHAIR DOMINGUEZ: Is there a second to the motion?


CHAIR DOMINGUEZ: Is there any further discussion?

(No response.)

CHAIR DOMINGUEZ: Hearing none, all those in favor please say aye.

(Chorus of ayes.)


(No response.)

CHAIR DOMINGUEZ: The ayes have it. The motion is carried and approved unanimously.

Commissioner Silverman, please make your seventh motion.

COMMISSIONER SILVERMAN: I move that the Office of General Counsel be encouraged to facilitate the staffing of systemic cases using a national law firm model, as recommended by the Systemic Task Force, whereby cases are staffed with employees who have the expertise needed in each particular case.

CHAIR DOMINGUEZ: Is there a second to the motion?


CHAIR DOMINGUEZ: Is there any discussion?

(No response.)

CHAIR DOMINGUEZ: Hearing none, all those in favor please say aye.

(Chorus of ayes.)


(No response.)

CHAIR DOMINGUEZ: The ayes have it and the motion is carried and approved unanimously. Thank you very much Commissioner Silverman.

In keeping with the previous motions, I will now issue the following directives.

Number one, the District Directors and Regional Attorneys are to prepare Systemic Plans to be submitted to the Director of OFP and the Deputy General Counsel.

Such plans should contribute to the EEOC’s nationwide systemic program; should include specific steps the district will take to identify and investigate systemic discrimination; and should address the investigation of existing charges or the development of Commissioner Charges and directed investigations.

The Districts should be encouraged to partner with offices or staff outside their districts, and OFP, OGC and ORIP should assist the districts in identifying offices and staff with systemic expertise who can serve as partners.

The Plans should require results and may require adjustments to other office goals and priorities. OFP and OGC should provide guidance to the field regarding the development of Systemic Plans. The Plans should be submitted to OFP and OGC by the end of the 4th quarter of Fiscal Year 2006 and ultimately approved by the Director of OFP and the Deputy General Counsel by the end of the 1st quarter of Fiscal Year 2007.

Second directive, the Office of Field Programs and the Office of General Counsel are to prepare a user-friendly memorandum for field personnel by the end of the third quarter of Fiscal Year 2006. This memo will explain the procedures for initiating and investigating Commissioner Charges and Directed Investigations and will also clarify the type of evidence and information that typically should be included in a Commissioner Charge proposal.

Third directive, the Office of Field Programs and the Office of General Counsel shall inform new Commissioners about the Commissioner Charge process and the amount of evidence that is typically available at the proposal stage. Commissioners are encouraged to consult with field offices about field proposals, or if they wish to develop their own Commissioner Charges on their own initiative.

Fourth directive, the Executive Secretariat shall ensure that Commissioners review Commissioner Charges in a timely manner.

Directive number five, I direct that a Committee of Advisors for Systemic Enforcement that shall be known as CASE, be established in accordance with the recommendations of the Systemic Task Force.

CASE shall not serve as a management function, but shall assess the agency’s overall effectiveness in combating systemic discrimination and shall also serve as a resource on systemic matters.

The Office of Field Programs, the Office of General Counsel and the Office of Research, Information and Planning will take the lead in establishing CASE. CASE shall provide semi-annual reports to the Commissioners and to the field.

Directive number six, the Office of Field Programs, the Office of General Counsel, District Directors and Regional Attorneys are encouraged to identify systemic discrimination by doing the following: analyzing relevant information, including reports provided by ORIP and other data; engaging in outreach efforts with advocacy groups, academicians and others; collaborating with FEPA partners; coordinating with the U.S. Departments of Justice and Labor; and coordinating among other appropriate agencies and among district offices to share ideas and information. Possible systemic discrimination should be pursued through expanded charge investigations, through Commissioner Charges and Directed Investigations where appropriate.

Directive number seven, OFP, OGC, ORIP and the Office of the Chair, in accordance with recommendations 62 through 65 of the Systemic Task Force Report, shall develop incentives to support the successful implementation of the new systemic program, including making appropriate modifications to the performance plans of District Directors, Regional Attorneys and relevant ORIP staff for Fiscal Year 2007.

The field should be encouraged to successfully identify, investigate, conciliate and litigate systemic cases, to contribute to the Commission’s national program of combating systemic discrimination, and we’re going to do this through partnering, mentoring or other methods and developing systemic expertise among staff.

Number eight, the Office of Information Technology, in consultation with OGC, OFP, ORIP and the Chief Financial Officer, is directed to analyze Task Force recommendations 66 through 92 and to develop an action plan to submit to the Commission by the end of the third quarter in Fiscal Year 2006. This plan should include a timeline for the collection of requirements from the Task Force and relevant offices, a feasibility analysis based on the requirements, and the development of cost and resource estimates needed to implement system modifications or new systems.

When developing the action plan, OIT should give particular priority to linking IMS data with the data from the EEO-1 Survey to allow users working in IMS to access EEO-1 data automatically; creating a mechanism for placing “flags” in IMS to identify issues, bases, industries, and employers of interest; integrating Census data into the EEO-1 Desktop to allow staff to construct Census-based availability estimates; creating a mechanism such as an electronic bulletin board or listserv to facilitate communication among staff; and ensuring that the technology framework supports staff in different offices working together and effectively on systemic cases (via common share drives, litigation support software that can be used across offices, or any other appropriate tool).

Number nine, the Office of Research, Information and Planning shall support the Commission’s systemic program by analyzing charges, EEO Survey and Census data to identify possible systemic discrimination from national and regional perspectives, prepare user-friendly reports and identify bases, issues, industries or employers of interest.

ORIP also shall work with the field to identify local issues and obtain information about particular charges and identify local academicians to discuss local economic trends with field offices. ORIP shall gear formal studies toward identifying systemic discrimination for enforcement purposes. In consultation with OFP, ORIP shall also identify instances of possible systemic discrimination where more than one office is investigating similar claims against the same respondent and shall communicate this information to the field and OFP for possible coordination. Headquarters shall also assist the field in conducting library research related to systemic cases.

Number ten, the Office of Research, Information and Planning is requested to unify its expert staff who support the field's development and identification of systemic charges.

Number 11, the Office of General Counsel is encouraged to facilitate the staffing of systemic cases using a national law firm model, as recommended by the Systemic Task Force.

In addition, OGC is encouraged to provide increased assistance to the field in systemic cases that are consistent with the Task Force’s recommendations, including providing direct litigation support services; providing additional assistance with technology-related discovery and trial matters; identifying staff with systemic expertise; assisting with coordination between offices on related or similar systemic cases; and assisting the field in identifying, selecting and working with experts.

OGC is requested to provide quarterly reports to the field and appropriate headquarters offices on the status of EEOC’s systemic litigation program.

Number 12, OFP, OGC, ORIP, in collaboration with the field and relevant headquarters staff, shall support and promote the enhancement of expertise related to the identification, investigation, conciliation and litigation of systemic cases through a variety of means, consistent with the Systemic Task Force’s recommendations 54 through 60, and 99 and 100. Specifically, OFP and OGC are encouraged to help facilitate partnering opportunities as a means to develop expertise in systemic cases.

I request that by the end of the third quarter of Fiscal Year 2006, OFP, OGC and ORIP, with broad consultation with internal staff, prepare plans for formal, informal and self-directed training on systemic matters (including training in partnership with other agencies and organizations, as appropriate).

OFP, OGC and ORIP should collect and create manuals, guidelines, checklists, sample documents and other appropriate materials useful to field staff in developing, investigating or conciliating systemic cases, and these materials shall be placed on an internal website, in a section devoted to the Commission’s systemic practices. OGC, ORIP, and the Chief Financial Officer are encouraged to provide access to appropriate subscription services, books, videos and journals to support the systemic program, consistent with available resources. To help launch the Commission’s systemic program this year, I will commit Fiscal Year 2006 training funds to conduct a systemic conference.

Directive number 13, in conjunction with the Director of the Office of Field Programs, the Deputy General Counsel and the Chief Financial Officer, and consistent with available resources, I will ensure that staff are properly allocated in support of the systemic program.

I will further assess the staffing recommendations identified in the Systemic Task Force Report to determine appropriate staffing, either through the realignment of existing staff or through new hires, including the recommendation to hire additional field staff, particularly in those offices that are sharing their expertise with others.

We also have to look at hiring additional expert staff for ORIP and OGC, to add paralegal positions, and redeploy some Headquarters staff to enhance the library staff. The Office of Human Resources is hereby directed to explore the feasibility of creating a select number of GS-13 lead systemic investigator positions and GS-12 systemic litigation analyst positions, as appropriate.

Number 14, districts are requested to identify a primary point of contact, a person responsible for coordinating with ORIP, OFP and OGC in the identification of systemic discrimination.

Number 15, OGC, OFP and ORIP are requested to identify contact people for field offices who wish to seek assistance in developing or investigating systemic Commissioner Charges or Directed Investigations.

Number 16, OFP and OGC shall issue a memorandum to the field by the end of the third quarter of Fiscal Year 2006, clarifying that: 1) there should be close interaction between enforcement and legal on the development and investigation of systemic charges; 2) A-1 charges should not be sent to the mediation program without the concurrence of the District Director and the Regional Attorney; 3) districts should share priority issues with other districts, appropriate headquarters staff and FEPAs; 4) staff should explore the class potential of charges where appropriate, and charging parties may include class allegations in charges if they wish to do so; and finally, systemic charges should be processed as appropriate, including dismissed when a review of the information on hand indicates that further investigation is not likely to uncover evidence substantiating the allegations.

Number 17, OFP, OGC and district offices should coordinate with federal, state and local sister agencies on systemic cases, where appropriate. OFP and OGC should identify an employee responsible for coordinating with the Department of Justice and the Department of Labor on systemic charges and cases.

And my final directive, number 18, members of the Commission and employees who engage in outreach are encouraged to use their public speaking engagements to educate employers and other members of the public about systemic discrimination, including trends and issues that the agency has identified and cases that the agency has handled.

Are there any other additional comments or questions?

COMMISSIONER ISHIMARU: Madam Chair, that was a very impressive list. I would ask that when we post Leslie's report on the website today I guess, that the list of the motions we've adopted and your directives be posted as well so it doesn't have to wait until the transcript comes back from the printer.

CHAIR DOMINGUEZ: Okay. I will coordinate with the appropriate staff to see what we can do on that.

COMMISSIONER ISHIMARU: Excellent. I thank you.

CHAIR DOMINGUEZ: Commissioner Ishimaru earlier in his remarks said that this is the beginning and not the end. I mentioned seven motions and eighteen different directives. It is a lot of work.

But again, it’s the beginning and not the end. And the reason for that is because we are fundamentally refocusing our priorities. We are fundamentally changing the way we do our work. And this is no different from when the Civil Rights Act was passed or the Americans with Disabilities Act was passed. That was just the beginning of the work.

The work is still in front of us. Even 41 years later -- 42 years later for the Civil Rights Act. So the point I am trying to make is we have a lot of work to do but I think long term, as we begin to institutionalize our approach to a systemic, broader, coordinative process of inclusion and access among all of our employees, all of our staff members. It would not just be a credit for an office or a credit for an individual. It really will be long-lasting value to all victims of discrimination. And I think the legacy that we are all leaving here for future, hopefully to truly make the Civil Rights Act and all the other statues that we enforce a dream come true.

So I just want to take this moment to really again thank my fellow Commissioner Silverman and all my other Commissioners for the tremendous support they’ve given to this task force.

We have a lot of work to do but I know that the commitments are there. And little by little we will continue to make a difference.

Again, thank you for joining us. We appreciate your being here.

And there being no further business, do I hear a motion to adjourn?


CHAIR: Do I hear a consensus?


CHAIR: All in favor please say aye.

(Chorus of ayes.)

CHAIR: Opposed?

CHAIR: The ayes have it and the meeting is adjourned.

(Whereupon, the above-entitled meeting was concluded at 12:25 p.m.)

This page was last modified on February 28, 2006.