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  4. Meeting of November 16, 2011 - Transcript

Meeting of November 16, 2011 - Transcript


STUART J. ISHIMARU, Commissioner
CHAI R. FELDBLUM, Commissioner
VICTORIA A. LIPNIC, Commissioner


P. DAVID LOPEZ, General Counsel

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



  1. Announcement of Notation Votes
  2. Draft Final Regulation on Disparate Impact and Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act
  3. Overcoming Barriers to the Employment of Veterans with Disabilities


(8:30 a.m.)

CHAIR BERRIEN: As much as anything, that's a wake-up gavel. Good morning everyone. The meeting of the EEOC will come to order now. I want to thank everyone for being here especially at this early hour. We are meeting for the first time in fiscal year 2012. And I would like, as we start this meeting, to take a moment to congratulate our colleague, Commissioner Constance Barker, who since our last meeting was confirmed for a second term to the Commission.


CHAIR BERRIEN: Congratulations and we are all looking forward to working with you and continuing to work with you, Commissioner. In accordance with the Sunshine Act, today's meeting is open to public observation of the Commission's deliberations and voting. At this time I'm going to ask Bernadette Wilson from the Executive Secretariat to announce any notation votes that have taken place since the last Commission meeting, Ms. Wilson?

MS. WILSON: Good morning. Before I begin, is there anyone in need of interpreter services, sign language interpreter services? Okay. Good morning Madam Chair, Commissioners. I'm Bernadette Wilson from the Executive Secretariat. We'd like to remind our audience that questions and comments from the audience are not permitted during the meeting. And we ask that you carry on any conversations outside the meeting room, departing and reentering as quietly as possible. Also, please take this opportunity to turn your cell phones off or to vibrate mode.

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

During the period July 26th, 2011 through November 14th, 2011 the Commission acted on 20 items by notation vote:

Approved litigation on two (2) cases;

Approved Amicus Participation in three (3) cases;

Approved three (3) Subpoena Determinations and disapproved two (2);

Approved a Federal Sector Decision;

Approved the final plan for retrospective analysis of existing rules pursuant to Executive Order 13563;

Approved the Fall 2011 regulatory agenda;

Approved a contract for labor economist services for a litigation case;

Approved industrial psychology services to support litigation in another litigation case;

Approved a letter in support of the ratification of the convention on the rights of persons with disabilities;

Approved a revised memorandum of understanding with the Office of Federal Contract Compliance Programs; and,

Approved resolutions honoring Pedro M. Esquivel, Vincent J. Blackwood, and Leon W. Russell on their retirement. Madam Chair.

CHAIR BERRIEN: Thank you Ms. Wilson. We're here this morning to consider a proposed final rule to amend the Commission's regulations concerning disparate impact claims, and the reasonable factors other than age defense under the Age Discrimination in Employment Act. I would like to introduce and ask to please come to the front table, Ms. Lyn McDermott and Ms. Dianna Johnston from our Office of Legal Counsel, and Aaron --

MS. MCDERMOTT: Aaron Konopasky.

CHAIR BERRIEN: Aaron Konopasky, also from the Office of Legal Counsel. Ms. McDermott, I understand that you are prepared to provide some information about the proposed rule and that all of you are available in the event there are questions from Commissioners. So please proceed.

MS. MCDERMOTT: Thank you Madam Chair. Good morning Madam Chair, Commissioners. I'm Lyn McDermott from the Office of Legal Counsel which is the office that drafted the proposed final rule. I'm here with Dianna Johnston, who supervised the drafting of the rule and Aaron Konopasky, who also drafted the rule.

And I'm very happy to have this opportunity to give you some background on the development of this proposed final rule to amend current EEOC regulations concerning disparate impact and reasonable factors other than age under the Age Discrimination in Employment Act. Current regulations interpret the ADEA to prohibit an employment practice that has a disparate impact on older workers, unless it is justified by business necessity.

In addition, the current regulations state that when the reasonable factor other than age exception is raised in an individual case of discriminatory treatment; the employer has the burden of proving that the RFOA exists factually. This proposed rule would amend those regulations in light of two Supreme Court decisions.

In Jackson versus the City of -- excuse me, in Smith v. the City of Jackson, the Supreme Court confirmed that disparate impact analysis does, in fact, apply under the ADEA. But it stated that the standard for determining liability is reasonable factors other than age, rather than business necessity.

Following Smith, in 2008 the EEOC issued a Notice of Proposed Rulemaking, proposing to amend our regulations to state that any employment practice that has a disparate impact on the basis of age is discriminatory unless it is justified by a reasonable factor other than age. The NPRM also stated that the individual alleging disparate impact has the burden of isolating and identifying the particular practice that results in the impact. And in addition, it stated that the employer has the burden of proof on the RFOA defense.

We received ten comments in response to that NPRM. The six commenters who talked about the disparate impact standard generally supported it; two of them wanted some word changes. In addition, five commenters supported placing the RFOA burden of proof on the employer and four opposed it.

Subsequently, in Meacham v. Knolls Atomic Power Laboratory, the Supreme Court confirmed that the employer has the RFOA burden of persuasion. In 2010 the EEOC issued a second Notice of Proposed Rulemaking, and that NPRM addressed the scope of the RFOA defense. It noted that the RFOA determination defense depends on the particular facts and circumstances of each individual situation. It separated out the definitions of reasonable and other than age. And it listed factors relevant to whether a practice is reasonable and whether a practice is other than age.

We received 27 comments from individuals and groups. Nine of them supported the proposal, eight opposed it, and seven of them offered specific suggestions or made some general comments. In addition, we received more than 2300 form faxes, almost all of which opposed the rule.

After careful consideration of all of the comments that we received on both NPRMs, staff in the Office of Legal Counsel drafted a proposed final rule covering both NPRMs. We coordinated the proposal with the Offices of Federal Operations, Field Programs, and General Counsel. And then on March 30th of this year we submitted a proposed final rule to the Commission for a briefing period.

On July 8th we submitted a proposed final rule for a vote. That's the rule that you have before you today. And it reflects changes made as a result of the briefing period. The Office of Legal Counsel recommends that you approve this Draft Final Regulation for circulation to other federal agencies and for review by the Office of Management and Budget. Thank you Madam Chair.

CHAIR BERRIEN: Thank you Ms. McDermott. We'll now have questions, comments, statements from the members of the Commission. And I just want to remind everyone we will use our light. The yellow light will appear when you have one minute remaining. The red light will appear when the allotted time has ended. And we'll begin with Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Great. Thank you Madam Chair. I want to thank my colleagues from the Office of Legal Counsel for their fine presentation, much appreciated. I am delighted that the Commission is moving forward with this rule to clarify the standards for disparate impact claims under the Age Discrimination in Employment Act. I believe the Commission has an obligation to issue regulatory guidance, since the Supreme Court's decisions in Smith and Meacham failed to -- is my mike on?

(Off microphone comments)


COMMISSIONER ISHIMARU: Exploded, all right. We got it. Can I start my time again?


COMMISSIONER ISHIMARU: Thank you. Let me thank again, my colleagues from the Office of Legal Counsel for their fine presentation. I'm pleased the Commission is moving forward with this rule to clarify the standards for disparate impact claims under the Age Discrimination in Employment Act. I believe the Commission has an obligation to issue regulatory guidance since the Supreme Court's decisions in Smith and Meacham failed to explain the contours of the reasonable factors other than age defense.

It is certainly time for the Commission to send this rule to OMB, given that the Supreme Court decisions occurred in 2005, 2008. I'm also pleased that the Commission has crafted a rule that is the product of careful deliberation, practical experience, and balancing of interests.

I want to express my appreciation to my friend, Commissioner Lipnic, for her thoughtful engagement and cooperative effort in moving this rule forward. I believe our discussions led to a greater clarity and precision in the rule. The rule is fair, workable, and consistent with Supreme Court case law. It strikes the appropriate balance between protecting older workers from discriminatory, unreasonable business decisions, and preserves the employer's right to make reasonable business decisions.

That balance is particularly critical at a time when the unemployment rate for workers aged 55 and older increased by 331 percent over the past decade. Age discrimination continues to be a serious and growing problem. The number of age discrimination charges filed with the Commission increased by 45 percent since 2000. In 2009 the Commission convened a meeting on age discrimination, where we heard first hand from older workers about the devastating impact that discriminatory practices have on older workers, their families, and the economy. And I certainly vividly recall the testimony from some of the older workers at the meeting as I'm sure of my friend, Commissioner Barker does as well.

For those of you who weren't here at the time, one of those statements is particularly relevant to the Rule we discuss today. John Stannard was one of those plaintiffs in the Meacham Supreme Court case. He had worked at the Knolls Atomic Power Lab for 27 years before he was terminated. Thirty of the 31 workers who were terminated from the Knolls Lab wereover age 40. Our rules affect employees and employer practices. And I wanted to share an older worker's personal experience.

Mr. Stannard testified, "I believe I was selected for a lay-off merely because of the false stereotype which characterizes older workers as less flexible and critical. For 27 years my performance was always rated as good or excellent. I was proud to do a job which I considered important to our national security. When I was laid off I felt completely betrayed. My family's standard of living was severely impacted. My son had to drop out of Albany College of Pharmacy because I could no longer afford to help with tuition payments. In desperate need of money, I took the only job readily available which was a janitor position at the Knolls Lab."

Now this was from a former Nuclear Fuel Containment Specialist and he got laid off and he had to take a job as a janitor just to pay basic bills, something's very, very wrong here. The Meacham case dragged on for 13 years, mainly because the legal standards for disparate impact claims had not been clear. Older workers and employers should not have to live with such uncertainty or confusion again.

We should be mindful that it was Congress who crafted the RFOA as a defense to the age disparate impact claims and the Supreme Court, who confirmed that employers have to prove that their choices are reasonable. This Rule clarifies the legal standard so that older workers, employers, and the courts will know when an employer can legally justify a practice that disadvantages older workers.

Before I close, I want to thank Patrick Patterson of your staff, Madam Chair, and Cathy Ventrell-Monsees of my staff for their hard work on this. I know that a lot of hours went in working with the Office of Legal Counsel with Commissioner Lipnic's office and other offices to come out with a fine Rule. So I urge a "yes" vote, I yield back, thank you.

CHAIR BERRIEN: Thank you Commissioner. Commissioner Barker?

COMMISSIONER BARKER: Let me start by thanking the Office of Legal Counsel for the work that they've done on this. We have met with Legal Counsel and they are aware that while we agree with a lot of what they've put together in the regulations, there are several fundamental things that we disagree with, but I appreciate their efforts nonetheless.

Thank you Madam Chair and my fellow Commissioners for welcoming me back to the Commission for another full term. I look forward to working with all of you. In reviewing the proposed regulations that are before us today, I sought to follow Congressional intent as is always our requirement, and to follow that intent closely and faithfully. I look to the language, the purpose, and the legislative history of the ADEA.

Also during the Rulemaking process, I reached out to key stakeholders, including AARP and met with those folks and appreciate their input. The general purposes of the ADEA are to remove arbitrary and unreasonable barriers to the employment of older workers, and to promote the employment of older workers based on their ability rather than their age. The disparate impact theory provides an important avenue of recourse for older workers, permitting older workers to challenge neutral but discriminatory practices that operate to exclude or disadvantage in arbitrary ways. There is no question that the Commission's regulations must be updated to provide the correct legal framework for disparate impact as set forth in U.S. Supreme Court decision of Smith v. Jackson.

It is our obligation to set forth clear and correct legal standards and to eliminate any inconsistencies in misleading provisions in light of that decision. I would certainly vote to approve the regulations if I felt that they did exactly that. However, the February 2010 NPRM, the final regulations before us today adopt a tort law standard for defining what is meant by the statutory term, reasonable factors. In doing so, the regulations fabricate a new standard for the RFOA defense without foundation in the ADEA. There is no legal basis in either the statutory language or legislative history for introducing as tort law standard that has not been used before for this purpose under the ADEA.

I continue to believe that without such a legal basis, we don't have the authority to incorporate that into these regulations. Whether or not we agree with that standard or feel that that is the direction the courts should be moving in, while we'd like to have that standard in the regulations, the legal basis is simply not there and I believe it would be exceeding my authority as a Commissioner if I voted to approve them.

The statutory RFOA defense is straightforward. It asks simply whether a differentiation is based on reasonable factors other than age. That should be the end of the analysis. We should not go beyond this. The statute requires an inquiry into only the reasonableness of the factor itself, not the reasonableness of the process used by the employer to decide upon the factor.

The NPRM attempted to differentiate the new tort law standard from the business necessity standard, which is properly being eliminated from the regulations. In doing so, I am concerned about creating a new defense that imposes a more restrictive and more difficult defense for employers to apply. And this is the defense that it may be that, that small cadre of very large employers who have very sophisticated human resource departments, and highly paid legal attorneys, defense teams may be able to apply. But my concern is the small business person. This administration has focused on its concerns for small business and this nation has focused its concerns on small business, and the need for us to not impose regulations that are unfair and unreasonable for small businesses.

And my concern is that no matter how well intentioned these regulations may be, that when we look at the small business person who is desperately working to just keep his doors open and keep a few Americans employed; that small business person who is the future of our economic prosperity, that by adding this tort law standard to him, we're imposing a burden on him that he simply cannot meet. And for him that may be the difference between keeping his doors open or not. My appreciation again to OLC, there's a tremendous amount of work that went into the drafting of the regulations. Thank you Madam Chair for your time.

CHAIR BERRIEN: Thank you Commissioner Barker. Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you Madam Chair. I plan to vote yes on this proposed final regulation. The Age Discrimination in Employment Act, the ADEA, prohibits discrimination in employment against those who are 40 years or older. The ADEA also provides that it is not unlawful for an employer, an employment agency, or union to take an action that would otherwise be prohibited under the ADEA where, "The differentiation is based on reasonable factors other than age."

In 2005, as we have heard, in Smith v. City of Jackson, the Supreme Court held that the ADEA permits disparate impact claims to be brought. The Court concluded in that case that the petitioners had not set forth a valid disparate impact claim. The Court ruled that the "reasonable factors other than age" standard is the appropriate defense for an employer to use when faced with a disparate impact claim, and not the "business necessity" defense, well known to us from Title VII case law.

In Smith v. City of Jackson, the Supreme Court did not expound on what the "reasonable factors other than age" standard requires. In 2008 the Supreme Court again ruled on the contours of the ADEA, this time in Meacham versus Knolls Atomic Power Lab. In that case the Court ruled that the employer has the burden of persuasion in establishing a "reasonable factors other than age" standard.

The Supreme Court again explained that "the business necessity test should have no place in ADEA disparate impact cases." And the Court again, gave no further guidance on what constitutes a "reasonable factors other than age" defense. As you have heard from our Office of Legal Counsel lawyer, in March 2008 the Commission published a Notice of Proposed Rulemaking to amend its regulation to reflect the Supreme Court's decision in City of Jackson. And in February 2010 the Commission published another NPRM to amend its regulations to define the scope of the reasonable factors other than age defense. In our various regulatory agendas that we have published over the past 18 months, we have noted that our final rule will cover the issues addressed in both NPRMs. In March 2011 we received a Draft Final Rule from our staff lawyers in the Office of Legal Counsel, which incorporated some of the public comments to both NPRMs. There were various internal conversations about that rule. And a new Draft Final Rule was circulated to us in July 2011. That is the rule now before us for a vote.

I am pleased with some of the changes that have been made between the proposed rule and the final rule. In particular, changes that make it clearer that the "reasonable factors other than age" standard is not the same as the business necessity defense. Given the Supreme Court's very clear pronouncements on this issue, I believe it is helpful that we have made these clarifications. Doing so, I believe, helps insure that both the Supreme Court and the lower court will find this rule to be legally valid.

Having said that, I must voice my disappointment that we are not sending this Rule to the OMB with bipartisan support by the EEOC. Those who know me know how important it has been to me personally, to try over the past 18 months that I have been on the Commission, to work for and ensure bipartisan support for any significant actions taken by us as a Commission. We have certainly managed to do so in the past. My hope therefore, is that this regulation will prove to be the exception to the rule of ongoing bipartisan votes by this Commission on significant actions. Thank you Madam Chair.

CHAIR BERRIEN: Thank you Commissioner Feldblum. As Ms. McDermott indicated, our existing regulations were adopted before the Supreme Court's decisions in Smith versus City of Jackson and Meacham versus Knolls Atomic Power Lab. They are now, and for several years have been, inconsistent with those decisions in some respects -- I apologize, not enough coffee. I apologize.

COMMISSIONER ISHIMARU: Start her time over.

CHAIR BERRIEN: I'm sure this is a very technical term for a do-over. Commissioner Lipnic, please?

COMMISSIONER LIPNIC: I think it's called a Mulligan, right?

CHAIR BERRIEN: Right, in golf.

COMMISSIONER LIPNIC: Right, for your husband who's a golfer.


COMMISSIONER LIPNIC: Thank you Madam Chair. My thanks also to the Office of Legal Counsel for all their work on this rule. And also to Commissioner Ishimaru's office for his engagement and his staff in particular, for their work on this rule. The proposed regulation before us this morning purports to clarify what is meant by the ADEA's reasonable factor other than age defense. Unfortunately, I can not support the proposed final rule in its current form. Let me say at the outset that I am truly disappointed that I can not vote for this rule.

Since reaching its full complement in April 2010, this Commission has promulgated a number of significant regulations and has done so in a bipartisan manner. In these instances all Commissioners were engaged and invested in both the process and the substance of the regulation. In that light, I would note that the rule we may approve this morning is not yet final, and may or may not return to the Commission for final approval from OMB. As I have in the past, I again offer to work with my fellow Commissioners in fashioning a rule that can enjoy broad bipartisan support, both within the Commission and among stakeholders.

I believe that the proposed regulation, were it to be made final in its current form, would be vulnerable to both substantive and procedural legal challenge. A detailed legal analysis of my concerns is set forth in my memorandum to the Chair of April 29th, 2011. Among my concerns, I am troubled that the final rule continues to adopt a tort standard of reasonableness under the ADEA. While it is true that anti-discrimination law does, in narrow instances, look to tort law for guidance; I am not at all convinced that the wholesale importation of tort law is appropriate or legally justified here.

The ADEA requires that to be lawful, an employment practice must be justified by a reasonable factor other than age. The tort standard of reasonableness is used to assess a course of conduct. Those are two very different things. I am concerned that rather than analyze the factor upon which an action is based, the proposed rule is far broader and instead examines the entire decision making process.

Put simply, the proposed final regulation places a duty on employers to preemptively avoid age discrimination and to seek out and assess less discriminatory alternatives, something that neither the plain text of the statute nor the Supreme Court requires. I question our authority to do so. The Supreme Court has made clear that and I quote, "Title VII's business necessity test should have no place in ADEA disparate impact cases." I am concerned that the proposed rule, as a practical matter, will hold employers to exactly that test. The proposed final rule sets forth a series of criteria against which an employer's conduct shall be measured, including how related a factor is to an employer's business purpose; how a given factor was decided upon; how supervisors were trained in how to apply the factor; how limited their discretion was; and what steps an employer took to assess and reduce disparate impact.

Indeed, while the expressed requirement to seek out and examine less discriminatory alternatives has been eliminated from the reg text; the preamble notes that the availability of options is manifestly relevant to the question of reasonableness. And that there will be instances where the failure to adopt a less discriminatory alternative will be manifestly unreasonable. Taken together, if that's not the business necessity test, I don't know what is.

In my view the proposed rule imports the business necessity test to the ADEA, something both Congress and the Supreme Court have pointedly declined to do. The proposed rule states that an employment practice which has a disparate impact on the basis of age, is discriminatory unless it is justified by a reasonable factor other than age. I believe that is an incorrect statement of the law. Section 4F of the ADEA sets forth a number of instances where a discriminatory action, which would otherwise be prohibited under the act, is lawful. For example, where an action is taken to observe the terms of a bona fide seniority system or employee benefit plan. In my view, it is a far more correct statement of the law to simply clarify that an employment practice which has a disparate impact may be lawful if it is based on reasonable factors other than age.

Finally, I am troubled by the conclusion that the proposed rule would not have a significant economic impact on small businesses, and that an analysis of alternative regulatory approaches is thus not required under the Regulatory Flexibility Act. I believe that the proposed rule would have a significant economic impact on small business and accordingly, should be subject to a reg flex analysis.

In closing, let me make one final observation which is of great concern. And that is, how this rule will be enforced in the field. Throughout this process I have asked this question numerous times. If an employer is hypothetically presented with three options for an employment decision, option A which has disparate impact on age. Option B which has a less discriminatory impact than option A. And option C, which has an even less discriminatory impact than A or B; what standard will we, the EEOC be holding employers to as we enforce this rule.

Will we always require that they choose the less discriminatory option? When will we view option B or even option A as being lawful under the Act? I have yet to get an answer to that question. And if our goal in this regulation is to give employers notice of their obligations and what this Agency expects of them under the law, I would suggest that this is a pretty important question to have answered. For these reasons, I can not support the proposed rule.

CHAIR BERRIEN: Thank you Commissioner Lipnic. Our existing regulations were adopted before the Supreme Court's decisions in Smith v. City of Jackson and Meacham v. Knolls Atomic Power Lab. They are now, and for several years, have been inconsistent with those decisions in some respects. The purpose of the rule before us today, is to make our regulations consistent with the Supreme Court decisions in Smith and Meacham.

As described by Ms. McDermott from the Office of Legal Counsel, the Commission issued two Notices of Proposed Rulemaking and it solicited, received, and has had an opportunity to review numerous public comments submitted in response to these NPRMs. Commission staff reviewed the public comments, as well as comments and suggestions from members of the Commission and the EEOC's Office of General Counsel, Office of Federal Operations, and Office of Field Programs.

I appreciate the thorough and thoughtful input that we have received from many sources, and believe that a proposed rule incorporates many suggested changes and includes language intended to address concerns expressed by a broad spectrum of the public and by members of the Commission, with respect to both the substance of the rule and our analysis of its costs and benefits.

I want to thank our Legal Counsel, Peggy Mastroianni, and the staff of OLC for their hard work in preparing and revising numerous drafts of the rule in response to the wide range of input we received. The proposed final rule makes it clear that the reasonable factors other than age standard is less demanding than Title VII's business necessity standard, which is consistent with the Supreme Court's decisions.

It also follows the Supreme Court's lead, in most recently Staub v. Proctor Hospital, by looking to tort law for guidance in construing the language of the ADEA's reasonable factors other than age provision. The proposed rule, in keeping with the Supreme Court decisions and statute on which it is based, strikes the appropriate balance between the rights of older workers to be protected from unlawful discrimination under the Age Discrimination in Employment Act, and the rights of employers to avoid disparate impact liability where their practices are justified by reasonable factors other than age.

I believe that this rule will provide necessary and long awaited guidance to employers, employees, and the public. I appreciate the efforts of all of the members of the Commission to develop a rule that could implement the ADEA as it has been affected by the decisions in Smith and Meacham. I am prepared to vote to approve the proposed final rule for coordination with other agencies and reviewed by the Office of Management and Budget, and I urge my colleagues on the Commission to do so as well. Thank you.

Is there any motion?

COMMISSIONER ISHIMARU: I move the previous question. I move that we adopt the regulation to send it to the Office of Management and Budget and for coordination as necessary.

CHAIR BERRIEN: Is there a second?


CHAIR BERRIEN: All in favor?



CHAIR BERRIEN: Aye. Opposed?



CHAIR BERRIEN: The motion has passed by a vote of three to two. That concludes the first segment of our meeting. We will take a recess until 9:30. We will reconvene promptly at 9:30 for discussion of the second item on today's agenda, Overcoming Barriers to the Employment of Veterans with Disabilities. Thank you.

(Whereupon, the above-entitled matter went off the record at 9:23 a.m. and resumed at 9:30 a.m.)

CHAIR BERRIEN: Well, good morning everyone. I want to welcome back those who were here for our first segment and we can handle a quick preliminary matter while we wait for the Legal Counsel to return, and the timekeeping to continue and resume.

One preliminary matter that I would like to repeat this morning for those of you who were here for the first session, but a note for those of you who are just joining us now for our session on Overcoming Barriers to the Employment of Veterans with Disabilities. In the time since our last public meeting as a Commission which was on July 26th, we're delighted that our colleague, Commissioner Constance Barker has been confirmed to a second term on the Commission and will be serving with us in continued service, uninterrupted service. And we are all looking forward to continuing to work with you on many matters, but I know that your upcoming work on the Small Business Task Force is something that we're all particularly excited about as well. So thank you.

COMMISSIONER BARKER: Thank you Madam Chair.


CHAIR BERRIEN: We'll have to make sure the next time there's cake or something. We should have something to celebrate, a little early though now. And there is one other important matter that I will mention preliminarily and I know that at least one colleague will be discussing in further detail, and that is that yesterday we received the unfortunate news that the former Chief Operating Officer of the Commission, Leonora or "Lea" Guarraia passed. And we have not received word yet in terms of services, but we did want to make those of you who are participating and may perhaps have had an opportunity over the years to know her or work with her, aware of that. And I know that you will hear more about her service here and her passing.

With that, I think we are prepared to return to the record portion of our meeting. We remind everyone that this is an open meeting of the Commission subject to the Sunshine Act. And I want to welcome our panel today. We're doing something a little bit different this morning. Typically we have sequential panels of witnesses. Our witnesses today have graciously and helpfully agreed to participate in a roundtable format today. So we will have the opportunity to hear from everyone and have an opportunity potentially for some exchange across the roundtable, or I guess it's actually a U-shaped table, but we want to thank you for being willing to be with us for the full morning session today. Peggy, are we ready? Okay, thank you.

Over the past decade three million veterans have returned from military service and another one million are expected to return to civilian life over the course of the next five years with the anticipated drawdown of operations in the Middle East. According to an October report from the Bureau of Labor Statistics, unemployment for post-9/11 era veterans hovers around 12 percent, which is more than three percentage points higher than the overall unemployment rate.

The picture is even bleaker for our youngest veterans and, particularly, young veterans of color and veterans without college education. For some of these veterans, long-term unemployment and sustained financial difficulties could await them unless we act now as a nation to address these unemployment challenges.

President Obama has said that no veteran should have to fight for a job at home after they fight for the nation overseas. Today we are beginning a discussion about the EEOC's role in insuring equal employment opportunity for veterans. And we will focus specifically on the experiences of veterans with disabilities in the civilian workforce.

As a federal agency charged with enforcing the laws that prohibit employment discrimination based on race, color, religion, sex, national origin, age, disability, and genetic information; it is incumbent upon us to consider the ways in which veterans may experience discrimination upon any prohibitive basis, and to insure that our outreach and enforcement efforts are sensitive to any particular needs of veterans and their families.

Today we are exploring the statutory framework that addresses the employment of veterans with disabilities. We'll have an opportunity to hear from this very distinguished panel about some of the challenges veterans with disabilities encounter in employment. We will learn about some common disabilities that affect veterans of recent conflicts. And we will have an opportunity to hear from employers and other representatives from the private and public sectors about how employers can accommodate those disabilities effectively and at reasonable cost.

According to the Bureau of Labor Statistics, about one in four veterans of the post-9/11 era report having a service-related disability. That amounts to over 500,000 recent veterans with service-related disabilities. Those veterans participate in the labor force at about 81 percent, which is five percent below the participation rate of veterans without service-connected disabilities.

And according to a very recently released report from the Pew Center, 28 percent of veterans with disabilities reported that their disability, and this is a quote, "kept them from getting or keeping a job at some point in their lives." Forty-six percent of disabled veterans who are not working, say their impairment is keeping them from getting a job.

In light of these statistics, it is essential that we familiarize ourselves as a Commission with issues that confront veterans with disabilities in the employment context, so that we can insure our outreach enforcement and litigation efforts meet their needs effectively. I look forward to today's important conversation about the employment of veterans with disabilities. I appreciate the work of the talented and committed panelists who have come to join us today. And whose agencies and organizations have committed so much to improving employment opportunities for veterans.

I thank you all for taking the time to be with us today. And finally, before I close my opening remarks, I want to specifically acknowledge two members of my staff who are veterans of the United States Army. Mr. James Price who received the Purple Heart for his service in the Vietnam War. And Ms. Sharon Alexander, who was once an ambulance platoon leader and worked extremely hard in her civilian capacity every day in our office, and specifically to conceptualize and organize today's meeting.

I am grateful that I am able to work with both of them, and they remind me and demonstrate daily the tremendous contributions that men and women who have served in the military can make and do make every day as part of the civilian workforce. I especially thank them both and the more than 500 veterans and reservists in the EEOC workforce. Thank you.

I will now invite my colleagues from the Commission to make brief opening statements, beginning with Commission Ishimaru.

COMMISSIONER ISHIMARU: Great. Thank you Madam Chair. I too want to welcome Commissioner Barker back for a full term. It's good to have a full term and you will be great, as you have been all the way along the ride. So, congratulations.


COMMISSIONER ISHIMARU: I also would like to spend a minute reflecting on our friend, Lea Guarraia, who was the Chief Operating Officer of the Commission under Chair Dominguez. Lea first came to the EEOC, I think in 1982 from the Department of Education. And she held a number of executive positions here at the headquarters over the years, and was the District Director in Los Angeles for a couple of years in the mid-80s. And I think I first met Lea Guarraia when she was over at the Department of Housing and Urban Development as a Deputy Assistant Secretary for Fair Housing. And Lea made the trains run on time. And I think one of the things that Lea did when she was at HUD, this was after the Congress had passed the Fair Housing amendments in 1988. And there was a huge effort to try to get that law into place and Lea was an outstanding part of that team to try to make that happen. But Cari Dominguez brought Lea Guarraia back here to be the COO when her term started in 2001. And Lea had mastery, I think, over the organization. I guess, I'm the only member of the Commission now who had the privilege of serving under her. Lea and I had many a conversation. Sometimes they were quite heated.


COMMISSIONER ISHIMARU: One of the spirits of bipartisan cooperation. But Lea knew her stuff, and we would argue, and we would talk, and we would agree, and we would disagree. But it was always vigorous. I respected her work. She respected mine and at the end of the day we could put our differences aside, we could go out for a glass of wine and a meal, and she was delightful company and I will miss her greatly.

I think the one story that many of us remember from the old building at 18th and L Street, there was a signal on the corner and there was a left-turn arrow that let cars make a left turn. And Lea didn't want to wait for that arrow to turn green for her to cross the street; it was green for the turn. And Lea one day went darting out into the street and a car ran over her ankle and Lea was not happy with that car, and let that driver know that he was definitely in the wrong. So we will miss the spirit and talents of Lea Guarraia; she gave many years to this Agency; she was beloved and I was truly saddened by her passing. So it's a sad way to start off the morning, but she really made a contribution.

So let me turn to the hearing. I too want to thank your staff Madam Chair, Mr. Price, the legendary Mr. Price, and Sharon Alexander for their hard work on this meeting. It's very important. Our nation owes a huge debt to our veterans. It's imperative that we do all that we can to make sure that our veterans, with and without disabilities, return to a country that recognizes and values their contributions and tremendous skills that they have.

As President Obama noted recently at the White House, that we must value the huge range of skills that veterans have acquired, often at a very young age. The President noted that the leadership experience that veterans have obtained, their expertise with cutting-edge technology, their ability to adapt in difficult and unpredictable conditions, and a myriad of other experiences acquired in the military; are skills directly transferrable to many workplaces in the private and public sector.

We must make the skills and experiences of veterans more understandable to employers so that vets can be hired and have their talents fully realized. And I guess I first saw this when I had the privilege of working for the House Armed Services Committee 20 years ago for a number of years. And one of the benefits of working for the Committee was that we got to meet with uniformed military folks from all the branches at all levels. And we met with four star flag officers down to the new recruits. And I liked talking to four star flag officers. We had fascinating conversations. But I think the thing that impressed me most during my two year stay at the Armed Service Committee was dealing with enlisted men and women, who were dealing with these multi-million dollar pieces of equipment, operating them, were making the programs run. And these were people who were trained by the military, who had discipline by the military, who had special skills, and it was a very impressive group of people all over the world. And that has stuck with me ever since, that there's a tremendous bank of human capital within the military and once those folks leave military service, that we should fully partake in both the private and public sectors. And I'm glad the Commission, this morning, is taking a look at how we can do that better especially for veterans who come back with service-connected disabilities. Because as we've seen as medical technologies have improved, the number of veterans with disabilities, often severe, has likewise increased. And here at the EEOC, we have a significant role to play in insuring that veterans with disabilities know and understand their rights under the Americans with Disabilities Act. And that employers understand all that can be done to accommodate vets with disabilities in the workplace.

In getting ready for this meeting, I've learned that in many instances disabled vets lack basic knowledge of their rights under the ADA. There is no law like the ADA that applies to service members while they're in the military. So for returning veterans with disabilities seeking to enter the civilian workforce, there's a great need for education about the ADA and its protections. This meeting is an important first step in the EEOC's efforts in his regard.

Veterans with disabilities should know that the EEOC stands both ready to educate them on their ADA rights, and to vigorously enforce the ADA to ensure their path to full employment.

And I noted a week or two ago, Secretary Panetta met with a number of CEOs at the Pentagon to talk about hiring of veterans and how important that is. And I think at the highest level that word needs to go out, that it's very, very important to get people with military service employed. It should be a very high priority for all of us. So I'm looking forward to the testimony. Thank you again Madam Chair.

CHAIR BERRIEN: Thank you, Commissioner. Commissioner Barker?

COMMISSIONER BARKER: Thank you Madam Chair, and my appreciation to all of the panel members this morning who took their time not only to draft your testimony, which takes quite an effort and I really appreciate that, but also to appear personally to deliver your testimonies, especially on such a crummy day to get out.

But I echo the sentiments of the Chair and Commissioner Ishimaru, and the importance that we highlight the concerns of veterans who have disabilities and the challenges they have reentering the workforce. And I think we should put a particular focus on combat veterans, because these are the folks who put their lives literally on the line for us. And the fact that they come back and have any sort of disabilities and are not able to find employment, is something that should not occur.

And I'm particularly concerned that, just as I am concerned that the federal government does not do a good enough job of being a model employer when it comes to hiring the disabled; it also is not a model employer when it comes to hiring veterans, particularly combat veterans who return with some form of disability. And I hope that we, as the federal government, improve our efforts along those lines. That said, thank you again for your contributions today.

CHAIR BERRIEN: Thank you, Commissioner. Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you Madam Chair. I am very pleased that we're hosting this roundtable today and that we have such an impressive group of participants, so welcome to all of you. I also want to thank Sharon Alexander on the Chair's staff. I didn't know about the ambulance work, although I did know about the military service. But she really did an excellent job, as I'm sure those of you who are in touch with her know.

So several months ago I spoke at a breakfast event in New York City prior to a job fair for veterans. The event was called, "Be a Hero, Hire a Hero." It was organized by a group called Hire, H-I-R-E, Hire Disability Solutions, established by a man named Jeff Claire. That group focuses on getting veterans, including veterans with disabilities, hired into civilian employment.

I was impressed and, in fact, deeply moved by the whole event. I was particularly impressed with the keynote address given at the breakfast by Colonel David Sutherland, a special assistant to the Chairman of the Joint Chief of Staffs. Colonel Sutherland goes around the country talking about the need to hire veterans into civilian employment, the challenges in doing so, and what we can do to really make a difference in this area. If any of you ever get a chance to hear Colonel Sutherland, I would encourage you to do so.

Colonel Sutherland was very clear that the challenge for us as a society is not just to insure that veterans get access into civilian employment in the first place. It is also about how to insure that veterans are retained in those jobs once they get them. So Colonel Sutherland told us this story.

A company had hired a veteran who had served several tours in Iraq. Maybe they had hired that veteran through a job fair similar to the one Colonel Sutherland and I were speaking at that morning. Or maybe they had hired that veteran through one of the excellent programs we're about to hear about this morning. However it came about, that veteran was employed in civilian employment.

But after several months on the job, things weren't going very well. The young man was not performing well and his supervisor was not particularly happy with him and his job performance. Well, this supervisor did something that more supervisors should do all the time. He talked to the young man about his job performance. And they talked about it in a non-defensive, problem-solving way.

Well, it turns out that the way the man's work was designed, there were often people moving around in the corridor behind him. And for whatever reason, the man's desk could not be swung around to face that opening. So every time the man heard a movement behind him, he would start and get distracted, so his concentration kept getting broken. And it was hard for him to settle into his work. And it wasn't happening to anyone else, but it was happening to him. Because he wasn't the same as everybody else sitting around that corridor with those cubicles.

Well, and no surprise, his job performance suffered. So one of them came up with a possible solution. Now to be honest, I don't remember if it was the employee, or the supervisor, or maybe it was even Colonel Sutherland who talked to him before he talked to the supervisor, the story's a little hazy in my brain. But, here was the solution: how about if the company affixed a rearview mirror to the man's wall above his desk. No one else has a rearview mirror, but no one else needed a rearview mirror.

Well, sure enough that did the trick. The rearview mirror was affixed. The man checked the mirror whenever he heard a movement, and somehow that settled him down. And apparently he's doing great at his job. Now I have no idea if this veteran has a disability under the ADA. And even if he did have a disability, I have no idea if he or his supervisor would've had a clue about reasonable accommodation in the ADA. I would hope so, but I don't know.

But what I love about this story is that it epitomizes for me the basic common sense of reasonable accommodation and the interactive process. And it highlights for me that retaining veterans in employment, including veterans with disabilities, is as important as getting veterans jobs in the first place.

It is excellent that we have laws in the books that prohibit discrimination against people with disabilities, including veterans with disabilities. It is excellent that we as a society are focusing on our obligations to veterans, including veterans with disabilities. I look forward to anything that we as a Commission can do to help our society meet its commitments in this area. And for that reason, Madam Chair, I am so happy that you are doing this roundtable.

But I hope at the end that we realize this is about common sense as much as it is about law. Veterans, including veterans with disabilities, will come to their civilian jobs with a unique set of talents and a unique set of challenges. I hope we are all ready to deploy both law and common sense in helping those veterans find and retain jobs. Thank you Madam Chair, and I look forward to hearing all of our roundtable participants.

CHAIR BERRIEN: Thank you Commissioner. Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you Madam Chair. Good morning everyone and especially welcome to all of our witnesses. I second the comments of my colleagues and I also want to thank your office, Madam Chair, for taking the lead in putting together this important meeting today, and especially Sharon Alexander for her always Army-strong effort at whatever task she undertakes.

When I visit EEOC offices around the country I always like to ask the staff to tell me, when they introduce themselves, what their career has been in federal service, if they have any prior federal service. And I always ask them if they've had any military service. And it's always somewhat surprising, to me, how surprised our staff is when I include "and tell me if you have any military service." And it's very interesting to see how proud everyone is of their participation in the military. But also then the big rivalry always breaks out between the person who's in the Marines and who was in the Army.


COMMISSIONER LIPNIC: There you go. There we have it. Anyway, last week we honored those who wore a uniform and fought for the freedoms that we benefit from every day. In that light, today we will examine an issue of great importance to many Americans, how we as a country can insure those who have fought our nation's wars and sacrificed an unspeakable amount, can return home to be gainfully employed. I learned from my father, who was a veteran of World War II that the lessons he learned through his military service proved invaluable to him throughout his working life.

Veterans with disabilities face many obstacles returning to civilian life. Re-integrating into their communities can be a daunting challenge, but finding and keeping meaningful employment is critical to a veteran's personal and professional success. In today's exceedingly difficult job market, no veteran with a disability should face unlawful discrimination when searching for a job.

Twenty-one years ago we made a promise to millions of workers with disabilities in this country that they would be judged solely on their ability to do the job, just like anyone else. The Americans with Disabilities Act represents our commitment to keeping that promise and it is a vital promise to those who have been injured while defending our freedom. I look forward to our discussion with our panel today. And, in particular, to your suggestions as to where we as a Commission can do better. And again, I thank the Chair and welcome all of our witnesses and I look forward to your testimony, and yield back.

CHAIR BERRIEN: Thank you. And now I'd like to briefly introduce our panelists. I think, because we do have a large panel, we'll do the introductions immediately before your statements. We've asked each panelist to limit the statement today to five minutes. You'll get a yellow warning light when you have one minute left and the red light will come on at the end of the five minutes.

We appreciate, though, that you have also prepared more extensive, in many cases more extensive written statements which will be posted on the website as a part of this meeting record and, of course, your statements will be part of the transcript today. So we thank you all. We will begin with Ray Decker, Assistant Director for Veteran Services with the U.S. Office of Personnel Management. Thank you.

MR. DECKER: Madam Chair and Commissioners, thank you very much for inviting me to this important discussion on the employment of veterans, to include those with disabilities. I'm also pleased to report my colleague, Mike Mahoney, from our policy shop is here with me in case questions come up in his area of responsibility.

Since the Office of Personnel Management, more specifically, my office at OPM, has an important leadership role in veterans' employment, allow me to provide a quick overview of the President's Veterans Employment Initiative. In 2009 the President signed Executive Order 13518. This launched the Veterans Employment Initiative, with the primary goal to improve the opportunities for all veterans and transitioning military service members seeking federal employment.

And when I use the term veterans, I mean veterans young, old, able-bodied, those with disabilities, it's all veterans. Council on Veterans Employment was created by the Executive Order and that's co-chaired by the Secretaries of VA and Department of Labor. My boss, the Director of OPM, serves as the vice-chair and provides senior leadership, direction and oversight for the initiative.

In 2010, September, Agency veterans' employment goals were established across the government by the Council for the 24 CHCO agencies. We used the fiscal year 2009 employment data as the baseline. Fiscal year '11 was the first full year using these percentage-based goals, and I'm pleased to report significant progress was made during this time. For the first three quarters of fiscal year '11, veteran new hires and disabled veteran new hires were 28.4 percent and 8.7 percent, respectively. And this is across all federal new hires.

I'm going to put this in context. For fiscal year '10, this is an over 3.5 percent increase on the new hires, and over a close to one percent increase on a disabled veteran new hires. Allow me to brief four critical enablers that I believe helped improve federal employment opportunities for veterans.

First, each of the 24 CHCO agencies established a Veterans Employment Program Office. And this office is typically manned by a federal employee who is a veteran; not all cases, but the majority are. And that is a local touchstone for a veteran seeking an employment opportunity within that Agency. Thanks to the great assistance from Dinah Cohen, who's going to talk about her program, we were able to outfit our office at OPM with assistive technology to help any veteran with a disability.

The three computer stations we have are equipped with ZoomText Magnifier/Reader 9.1, ZoomText large print keyboards, JAWS 10. One station is equipped with Topaz Desktop Video Magnifier with a connectivity pack. This allows an individual to put a document under the system and be able to see it on the screen and scan a document and save it to the computer. We also have a face-to-face communicator for someone that may be deaf. Our staff, except for my receptionist, are all veterans and they are disabled veterans.

Second, the use of Hiring Goal Model, which I covered briefly, provides both a challenge and an opportunity for agencies to step up their veteran employment activities, while offering an opportunity for oversight and accountability at the Agency level. The model focuses on veteran and disabled veteran hiring goals and is also being used for fiscal year '12.

Third, the use of special hiring authorities for veterans greatly facilitates the actual hiring process for qualified and eligible veterans. For example, veterans with a disability rating of 30 percent or more are eligible for a non-competitive appointment in the federal government. Though not designed specifically for veterans, the Schedule A hiring authority for people with disabilities is another authority under which agencies can appoint veterans with disabilities.

OPM advises veterans and hiring managers, as well as the HR practitioners, to use all hiring authorities, any hiring authority if it allows them to move forward in an expeditious manner.

And a final point I would make, we have a website, It serves as a critical communication and awareness tool for veterans, hiring managers, and HR specialists. It's not a job board, but rather a 508 compliant information hub on veteran employment issues. Madam Chair, this completes my statement. Thank you for the opportunity to be here.

CHAIR BERRIEN: Thank you very much. We're going to hear next from Joyce Walker-Jones, who is the Senior Attorney Advisor with the Office of Legal Counsel here at the EEOC. Thank you.

MS. WALKER-JONES: Good morning, Madam Chair and Commissioners. And thank you for not making me go first. I'm happy to speak with you today about issues concerning the employment of veterans with disabilities. In 2008, EEOC issued two guides, one for veterans and one for employers that explained how the Uniform Services Employment and Re-employment Act, or USERRA, and the Americans with Disabilities Act, or ADA, protect veterans with disabilities.

As you know, many veterans serving in Iraq, Afghanistan and surrounding duty stations have lost limbs, been diagnosed with Post Traumatic Stress Disorder, or PTSD, and have sustained brain, spinal cord, and other injuries. Now they are coming home and seeking to return to their former jobs or looking to find their first or new civilian jobs. Despite their injuries and impairments, many do not see themselves as disabled. I know from personal experience that my big brother, a U.S. Marine who fought in Vietnam did not. A 6'4" strapping former high school football player, my big brother, Will, voluntarily joined the military in 1964. A year later he was deployed to Vietnam where he spent 13 months on active duty, perhaps with Mr. Price. Although he was fortunate to return home without any obvious physical injuries, he definitely returned a changed man. Inexplicably he would space out during conversations and unconsciously tap his foot. He also had recurring nightmares and was more easily irritated, and refused to look at any war movies. In retrospect, I am convinced that he had PTSD.

Still, shortly after returning home, he managed to find an entry-level job managing a local gas station for a major oil company and later became a regional manager. In 1988 after years of chronic hypertension, his kidneys failed and he had to undergo dialysis three days a week for three hours a day. Yet, living by the model, once a Marine, always a Marine, he rarely missed a day of work or asked to change his schedule to accommodate his dialysis treatments. Unfortunately, my brother died one month before the ADA was passed.

A lot has changed since the passage of the ADA in July of 1990. Although myths and stereotypes about disability obviously still exist, there is a greater understanding now than ever before that disability does not mean inability. We issued our guides because we wanted veterans to know what the ADA is, what rights they have, and what accommodations will work for them. We also wanted employers to know that many veterans with disabilities are able to, and want to work.

To be covered by the ADA, an individual has to meet the ADA's definition of disability, which means that he or she has to have an impairment that substantially limits a major life activity, a record of such an impairment, or has to show that he or she is regarded as having a substantially limiting impairment. As a result of the ADA Amendments Act of 2008, which became effective after we issued our guides, it is now much easier for individuals with a wide range of impairments to meet this definition.

For example, the term, `major life activities' includes not only activities such as walking, seeing, hearing, and concentrating; but also the operation of major bodily functions, such as functions of the brain and the neurological system. Although the ADA uses different standards than the U.S. military and the Department of Veteran Affairs in determining disability; more injured veterans than ever will be assured that the law will protect them from discrimination, and that they will be able to obtain needed accommodations.

Both of our guides emphasize that an applicant or employee with a disability generally has to request an accommodation. However, making a request is easy. The ADA does not require an individual to submit a written request for accommodation, mention the ADA, or use the term reasonable accommodation. In fact, an individual does not have to explicitly say I have a disability to start the interactive process.

Rather, a person simply needs to tell the employer that he or she needs an adjustment or change in the application process or at work for a reason related to a medical condition. Both of our guides talk about the types of accommodation that veterans, or for that matter, any employee with a disability may need. There are many assistive technology devices that will help or even a mirror, as Commissioner Feldblum mentioned in her comment about someone who startles easily.

Our guides also have a list of resources for employers who are looking to recruit and hire veterans, and a list of resources for veterans who are looking for employment. In the days and week following this meeting, OLC will be updating our guides to reflect the changes made by the ADA Amendments Act. We welcome input from our panel members on how we can make these guides an even better resource for veterans with disabilities and for employers. Thank you for allowing me to speak and I look forward to questions later.

CHAIR BERRIEN: Thank you very much. Next we'll hear from Claudia Gordon, who is a Special Assistant to the Director of the Office of Federal Contract Compliance Programs at the U.S. Department of Labor.

MS. GORDON: Thank you Madam Chair, members of the Commission. Thank you for the opportunity to testify about the Office of Federal Contract Compliance Programs, OFCCP, and a way for us to make affirmative action provision of the Vietnam Era Veterans' Readjustment Assistant Act, we'll refer to as Section 4212 or VEVRAA. I am honored to speak with you today on behalf of Director Pat Shiu. I serve as Special Assistant to Pat Shiu.

We are very pleased that the Commission is examining the very pressing issue of Overcoming Barriers to Employment of Veterans with Disabilities. This issue is a priority for Director Shiu and the nearly 800 dedicated men and women employed by OFCCP to enforce the civil rights of those who are employed by or seek employment with federal contractors and subcontractors.

OFCCP is within the Department of Labor and we hold employers who do business with the federal government, contractors and subcontractors, to the fair and reasonable standards that they take affirmative action and prohibit discrimination with respect to sex, race, color, national origin, religion, disability, and status as a protected veteran. Simply put, we protect workers, promote diversity, and enforce the law.

I also want to point out that the universe of companies who hold federal contracts or subcontracts is nearly 200,000 businesses with contracts totaling almost $700 billion. Nearly one in four American workers is employed by a company that is either a federal contractor or subcontractor. At OFCCP we protect everyone who either works for, or those employees who seek employment with the business. So, given the broad jurisdiction of OFCCP, our enforcement activities have a ripple effect across entire American labor force.

One of the unique features of OFCCP is that we'll regularly evaluate businesses even when there is not a specific complaint. Each year, OFCCP uses a neutral process to select almost 4000 contractors to investigate whether they are complying with the law.

Now let me address what we do in relation to overcoming barriers to employment of veterans with disabilities. OFCCP is responsible for insuring compliance with the requirement in Section 4212(a)(1) that contractors take affirmative action to employ and advance in employment qualified protected veterans. We also are required to enforce Section 4212(a)(2)(a) that contractors list their employment opening with appropriate employment delivery system. Each such employment service delivery system is to provide protected veterans who are qualified with priority referrals to those job openings.

It should be noted that Section 4212 does not require federal contractors to give protected veterans preference in hiring, rather protected veterans are entitled to receive priority referrals to the job openings that the federal contractors are required to list with the employment delivery system.

OFCCP is one of the three agencies within Department of Labor with responsibilities for administering the equal employment opportunity provisions of VEVRAA. The other agencies are the Employment Training Administration, ETA, and the Veteran Employment Training Services.

OFCCP also enforces Section 503. Section 503 protects all individuals with disabilities as defined by the Act, which may include disabled veterans as defined in Section 4212. Nevertheless, it is another law that may afford veterans with disability protection. At OFCCP we have organized our priorities around three issues. First, enforcement, strengthening enforcement; implementing a role by regulatory agenda; and increasing awareness about OFCCP through education and outreach. I will briefly touch on each of these three priorities as related to veterans.

Under Director Shiu's leadership, we have shifted the enforcement activities to hold contractors accountable for the employment practiced. For example, Director Shiu has worked with her Regional Directors to institute new protocol that require our compliance officers to increase onsite reviews which are necessary to improve verification efforts and increase contractors' accountability. Rather than simply accepting contractor's self-reporting, we are mandating that compliance officers physically verify how contractors are treating protected veterans and people with disabilities, to insure that they are providing reasonable accommodation to workers, and confirm the existence and implementation of the Affirmative Action Plan.

OFCCP investigative procedures also include a verification that employer is listing job openings with appropriate employment delivery service system, so that veterans are given priority referral. Director Shiu has made it clear to OFCCP compliance officers that they must check and double-check compliance with these posting requirements during evaluation of contracting establishments.

Under the Obama Administration, 756 employers have been cited for violations impacting veterans. Additional compliance data are available in my original testimony. Under Obama Administration we have recovered $30 million in back wages and interest on behalf of 50,000 victims of discrimination. In the three years since Obama took office, we have audited 12,000 businesses which employ almost five million workers. And perhaps most important number is 4,800, that's how many potential job offers we have negotiated for those who have been unfairly subject to discrimination.

Briefly, about regulatory -- I'm out of time. I will mention briefly that we are also updating the federal requirement to strengthen the protection of veterans -- under those proposed changes to the Section 4212 regulations in my written testimony. Thank you for the opportunity to be here today.

CHAIR BERRIEN: Thank you so much. And we do all have the full written statement, and have had an opportunity to review it and look forward to hearing about more of your work in the question and answer session. Thank you.

We'll turn now to your colleague at the Department of Labor, Mr. George Parker, Director of the Office of Compliance and Investigations for the Veterans Employment and Training Service at the U.S. Department of Labor.

MR. PARKER: Thank you. Good morning Chairwoman Berrien and Commissioners of the Equal Opportunity Commission. My name is Mike Parker, Director of Compliance and Investigations at Veterans Employment and Training Service, more commonly referred to as VETS, U.S. Department of Labor. Accompanying me is Kenan Torrans, my Deputy who will gladly answer any stereotype questions. I'm relatively new in this position but we'll make it happen.

VETS proudly serves veterans and transition service members by providing resources and expertise to assist and prepare them to obtain meaningful careers, maximize their employment opportunities, and protect their employment rights. We do this through a variety of nationwide programs that are an integral part of Secretary Solis' vision of good jobs for everyone.

Based on the purpose of today's meeting, you requested that I discuss specifically the disability provisions under the USERRA, Uniform Services Employment Reemployment Rights Act from 1994 and America's Heroes at Work. USERRA covers three primary areas in protecting individual's employment and reemployment rights.

First, it provides that employers can not take any adverse action against current or perspective employees due to any part of those individual's past, present, or future military service, status, or obligations. Second, it provides that returning service members, who otherwise meet the five eligibility criteria, must be properly reinstated in the same positions of status, seniority, and rate of pay they otherwise would have obtained had they remained continuously employed. This is commonly referred to as the escalator principle.

The third area of protection involves anti-retaliation which precludes employers from taking any adverse action against any employee for asserting or helping another covered employee assert his or her USERRA rights. USERRA's disability provisions are generally encountered in USERRA's second primary coverage area. This will be our focus of discussion today.

USERRA generally provides that employers will make reasonable efforts to accommodate returning service members who have incurred an injury or disease in service to successfully perform their civilian jobs. This standard is very similar to that set forth under Title I of the America's Disability Act of 1990, except that USERRA's disability provisions are somewhat broader than those under the ADA.

USERRA's disability provisions are broader because the statute does not define disability per se. The Department has interpreted the term to mean any injury or disease, including psychological conditions, that would substantially interfere with an individual's ability to perform the functions of his or her job.

Accordingly, if a returning service member requires assistive devices or other technology to perform his or her job; the employer is required to make reasonable efforts to provide such assistance. But employers are not alone in these efforts. The Department of Veterans Affairs is also available to assist returning service members with service-incurred disabilities in providing assistive devices and technology, which relieves employers of some of that burden. The Department's position on that issue is that there are very few disabilities that can not be overcome with assistive technology.

When service members return to civilian employment following discharge from active duty, their employers must make all reasonable efforts to assist them in becoming qualified to perform the basic functions of their escalator positions. This standard also applies to service members returning to work with service-incurred medical illnesses or injury. If the returning service member is unable to become qualified to perform in his or her escalator position after the employer's reasonable efforts to assist; then the employer must make reasonable efforts to help the service member become qualified to perform the duties of the position that is equivalent in seniority, status, and pay to the escalator position.

An area of particular concern to the Department and its stakeholders, involves situations in which service members returning with disorders, such as Post Traumatic Stress or Traumatic Brain Injuries that may not be readily apparent when they return to work and are reinstated in their escalated positions. In such cases, once the condition is discovered; the Department interprets the statute as requiring the employer to restart the reemployment process making reasonable efforts to accommodate the service-incurred disability.

At present it is an open question as to USERRA's applicability in such situations given the length of time between initial reemployment and discovery of the disability. There are concerns that the service-incurred disability may not have become manifest until several years after reemployment, raising the question as to whether USERRA or Title I of the ADA should apply. The Department evaluates such situations on a case by case basis, and at present there is no bright line test to indicate the applicability of either USERRA or the ADA.

With respect to the matter of determining whether or not a medical disorder was or was not incurred or aggravated in service; the lack of an official VA rating decision formally establishing service connection is not considered dispositive. Other indication of service-incurred may be line of duty determinations, documentation from various military Physical Evaluation Boards, or statements from treating physicians attesting to service incurrence.

Congress is very much aware of the disability issues among our returning service members; and now requires the Department to indicate in its USERRA annual reports to Congress, the numbers of disability-related complaints it receives and investigates each year. Beginning -- sure. Let me talk a little bit about America's Heroes at Work.

CHAIR BERRIEN: If you can, quickly, please?

MR. PARKER: Okay. America's Heroes at Work is a Department of Labor project focused on an educational campaign targeting employers that provide access to information and tools that help address the employment challenges of returning service members affected by Traumatic Brain Injury or Post Traumatic Stress Disorder. It is also designed to help service members, particularly those returning from Iraq and Afghanistan, and veterans, succeed in the workplace, what are relative to other key groups including first responders as well.

VETS is committed to assisting veterans and transitioning service members find and maintain meaningful employment, as well as protecting their employment rights. We appreciate that the EEOC is holding these meetings and they are a tremendous help to increasing the awareness of the need, and benefits of hiring people with disabilities, especially disabled veterans. Thank you very much for having us here today as far as this meeting. And we would be happy to answer any questions at the appropriate time.

CHAIR BERRIEN: Thank you so much. I know the time constraints are difficult. We do want to make sure, honoring the time that people have committed to be here, that we have an opportunity to hear briefly from everyone and that there is an opportunity for the questions and answers as well. So we appreciate your recognition of the warning lights. We'd like to turn now to Ruth Fanning who is Director of Vocational Rehabilitation Services at the Department of Veterans Affairs.

MS. FANNING: Thank you Madam Chairwoman and Commissioners. It's just an honor for me to be here. As a rehabilitation professional of over 30 years, it's a great honor for me to service the Director of the Vocational Rehabilitation and Employment Program and to talk about this important topic of Overcoming Barriers to Employment for Veterans with Disabilities.

Military service equips veterans with unique skills that make them excellent employees in the civilian labor market including leadership abilities, ability to work as team members, established mission focus, and disciplined work ethics. Many leave the military with skills that make them immediately employable in the civilian sector. But some veterans face barriers that include lack of education, lack of transferrable skills for employment, lack of certifications that lend credence to the skill sets they learned during the military, or disabilities that prevent them from utilizing developed job skills.

The Voc Rehab and Employment Program is committed to helping reduce these barriers by providing services that lead, not just to jobs but to career opportunities for veterans with disabilities. VR&E's primary mission is to assist veterans to prepare for, obtain, and maintain suitable employment. VR&E services begins with a comprehensive evaluation to assist veterans to identify and understand their interests, aptitudes, and transferrable skills.

Next, vocational exploration focuses veterans on potential career goals that are a match for their skill sets that help them enter the job market at that highest rung possible in their particular position. And it educates them about current labor market demands. What jobs are there now? What jobs is there a demand for with not enough skilled workers? And strategically, if college is a service they need; where are the jobs going to be when they graduate?

Of equal importance, VR&E helps these very seriously injured veterans live as independently as possible. Some veterans have disabilities which are so severe, employment may not be their first option. But we do provide services that help them live as independently in the community as possible, to perhaps live at home with their family rather than in an assisted living program; to be able to navigate the community, whether it's with an assist of automobile or learning to use public transportation. And being able to function in ways that each of us take for granted each day and be autonomous is really a gift to these individuals, and very important services that we provide.

During fiscal year 2011 we received over 65,000 applications for our program. We currently are serving, in all statuses, over 107,000, almost 108,000 participants in all facets. Of that number, about 60,000 are engaged in rehabilitation plans leading toward career outcomes that will be realized this year or over the next five years, depending on what they're pursuing. For example, some veterans are in apprentice programs to become master plumbers. They probably will make more money than I could ever dream of in my career. We have eight veterans who enrolled in Harvard Graduate School. So the services we provide are really tailored to that veteran's interest and needs and run the gamut of the labor market demands.

Through our Coming Home to Work Program and its VR&E staff of over 1100 employees around the country, we really are actively engaged in early intervention. As a rehabilitation professional I know how important it is that services are provided as close to the point of injury as possible. This helps prevent underemployment, unemployment, homelessness; it helps prevent veterans from taking and staying in that first job, but rather seeing that as a transitional job while they get pointed in the direction and receive services to end up in careers.

As a result of the anticipated drawdown of troops, this outcome and outreach program can't be more important. We currently have a million veterans out there who are unemployed. We're expecting a million more to come home between now and 2016. Our job is now. And we can't afford to have study groups. We have to take action now. And I'm pleased that I'm surrounded by many colleagues who share that same opinion with me.

In addition, we're engaged with DoD and this is again, as a part of our early outreach this year we're placing 110 additional staff around the country to work with the integrated disability evaluation system. So it will be embedded on military bases. Veterans who are being referred to the Physical Evaluation Board with the probability of exiting the military as an individual with a disability, will be mandated by the military to have this one-on-one session with the vocational rehabilitation counselor to discuss all the benefits that are available -- other vocational rehabilitation and employment, post-9/11 GI Bill, direct employment services with our partners at Department of Labor, whatever services are appropriate for them.

We also at that time let them know all the other generous benefits that are available, such as the Home Alone Program, employee insurance that they can retain, compensation, of course, VHA services, medical services.

Over the last year we have greatly expanded our role to also reach out to the post-9/11 GI Bill population and, through a program called, Best Success on Campus, we've embedded staff on college campuses. We're working with Veterans Health Administration to expand this program as well. We know that there are many veterans who are not in Voc Rehab who do have disabilities. They are failing in courses. They may be dropping out of college because of symptoms that they don't know how to handle. And so by being on campus we can intervene, we can get them assistance in a non-threatening way and help them stay in college, complete their degrees, and get into meaningful careers.

We're continuing to work hard to develop new solutions that will further enhance employment and live-in services. We anticipate that as service members return from combat and Vietnam veterans with serious and progressive disabilities, are awarded service connection and may be coming back to us for the first time since retirement, dealing without the structure of their employment with Post Traumatic Stress symptoms. We are there throughout the continuum of the veteran's life cycle.

Now more than ever the employment needs of veterans are of the highest priority to VA. VA is showing leadership through our involvement in implementing the President's Government-wide hiring initiative. Fifty percent of my staff are veterans. We're working hard with the Office of Personnel Management, with DoD on this initiative. We believe that there is no more important initiative. And repaying these heroes with careers is really the best service that we can provide to them.

In conclusion, I would also like to point to a couple of our websites. The website, which provides a number of employment tools, as well as tools from transition all the way to tools for family members. And the new VA for vets website, which is targeted specifically to bringing veterans into employment within the VA. This concludes my testimony. I thank you for letting me go just a few seconds over time. And I would be pleased to answer any questions.

CHAIR BERRIEN: Thank you. We'll turn now to Heather Ansley, who's Director of Veterans Policy for VetsFirst, a program of the United Spinal Association, and is Co-chair of the Consortium of Citizens with Disabilities Veterans Task Force.

MS. ANSLEY: Thank you Chair Berrien, Commissioners Ishimaru, Barker, Feldblum, and Lipnic. Thank you for the opportunity to share information about barriers to employment experience by veterans who have disabilities related to their service. The Consortium for Citizens with Disabilities is a coalition of over 100 national consumer service provider and professional organizations which advocates on behalf of people with disabilities, and also have chronic conditions and their families.

The CCD Veterans Task Force works to bring the disability and veterans communities together to address issues that affect veterans with disabilities as people with disabilities. Because of the intersection of the disability and veterans communities that occurs when a veteran acquires a significant disability; the Task Force is uniquely situated to bring both perspectives to issues that cut across programmatic and policy lines.

After a decade of war, a significant number of service members have sustained life altering injuries. The signature injuries of our wounded warriors are Post Traumatic Stress Disorder and Traumatic Brain Injury. A 2008 Rand Study determined that approximately 18.5 percent of returning service members have PTSD or depression, and 19.5 percent have sustained a TBI. For veterans who have sustained significant injury, obtaining meaningful employment represents one of the best avenues for successfully reintegrating into their community.

Acquiring a severe service-related injury not only means the loss of function from the impairment, but the loss of identity as a member of the uniformed services. Without the opportunity to continue serving as a valued and contributing employee or employer, many veterans with disabilities can become disconnected from the very society that they pledge to protect. In the most recent survey by the U.S. Bureau of Labor Statistics, unemployment for veterans with service-connected disabilities; 114,000 veterans of the wars in Iraq and Afghanistan reported having a service-connected disability rated at 60 percent or higher on the VA scale. Unfortunately, 41,000 of these veterans are not participating in the labor force. Among veterans of all eras, with a service-connected disability related at least 60 percent; workforce participation was 27.9 percent.

The barriers to employment for veterans with disabilities differs somewhat from the barriers that prevent other people with disabilities from gaining employment. For instance, veterans with service-connected disabilities retain Department of Veterans Affairs' disability compensation and healthcare benefits regardless of employment status. Unfortunately, delays in processing claims for VA disability compensation and receiving appropriate healthcare services, still insure that veterans are not entirely insulated from these barriers.

Veterans with disabilities, like other people with disabilities, however, also face barriers to employment that include misinformation about disability and misperceptions about required accommodations. Although disabled veterans have historically been viewed as more deserving of assistance than other people with disabilities, these veterans are not immune to the myth that surround the employment of people with disabilities.

For example, a recent survey from the Society of Human Resource Management found that just 39 percent of HR professionals surveyed agreed that it was easy for employers to find resources to help them accommodate veterans with disabilities. Despite similarities, veterans with disabilities often remain a distinct segment of the disability community. Disabled veterans typically identify more strongly with other veterans than with the larger disability community due to a shared military experience.

Veterans who have disabilities related to their service will likely not be familiar with the disability community or programs that are generally available to people with disabilities. For instance, the Americans with Disabilities Act serves as the primary statutory source of protection against discrimination due to employment, purchasing goods and services, and receiving state and local programs and services. But disabled veterans may be less familiar with the protections of the ADA than they are with veteran specific laws and programs, many of which you've heard about.

The Task Force appreciates the efforts of the Commission to reach out to veterans with service-connected disabilities, about the protections available to them under the ADA, including through the document, Veterans with Service-connected Disabilities in the Workplace in the ADA. EEOC should seek to collaborate with Departments of Defense, Homeland Security, Labors, VETS, and the VA to insure that this information is provided to participants and the Transition Assistance Program and the Disabled Transition Assistance Program. It's important to remember that all people who may have disabilities are not necessarily in VR&E or the systems within VA directed to disability.

Veterans who do not have disabilities related to their service may also be subject to discrimination by employers who assume, for instance, that all combat veterans have PTSD. For veterans who have faced discrimination due to the perception of having PTSD or other disabilities due to their military service, the ADA's "regarded as" prong may offer a legal remedy. We need to find ways to educate veterans and employers about the potential application of the "regarded as" prong of the ADA's disability definition. Again, thank you for the opportunity to present the views of the CCD Veterans Task Force concerning employment barriers for disabled veterans. This concludes my testimony and I would be pleased to answer any questions you may have. Thank you.

CHAIR BERRIEN: Thank you Ms. Ansley. We'll turn now to Dinah Cohen who is Director of the Computer and Electronics Accommodations Program of the Department of Defense. Thank you.

MS. COHEN: Madam Chair, Commissioners, and colleagues, it is an honor to be here today with all of you to tell you how the Computer Electronic Accommodations Program, better known as CAP, is supporting our wounded service members and our disabled veterans.

It is CAP's mission to provide assistive technology and accommodations to insure that people with disabilities and my newest customers, my wounded service members, have equal access to the information environment and opportunities of employment in the federal government. CAP services were established in 1990 as the centrally funded program in the Department of Defense to provide assistive technology to our DoD employees with disabilities. It was then expanded in 2000 to start to service other federal agencies. So we now have partnerships with 68 federal agencies, including OPM, Department of Labor, and the Department of Veterans Affairs and, of course, EEOC. CAP services were expanded again via the National Defense Authorization Act to provide accommodations to our returning wounded warriors.

As outlined in our DoD instruction, we work closely with our rehabilitation professionals, our medical doctors, our nurses in our Department of Defense Military Treatment facilities to increase awareness and the availability of assistive technology. Once the appropriate assistive technology's been identified, we provide it free of charge to that service member in support of their recovery and rehabilitation.

The ability to use assistive technology during their early phases of recovery, promotes positive rehabilitation outcomes and further employment opportunities. Through these changes in legislation, wounded service members can now retain the assistive technology that we have provided them during their rehabilitation process.

In fiscal year 2011, CAP provided over 6685 requests for accommodations, and the average cost of these accommodations to our wounded service members, at the 58 different military treatment facilities, was $258.37; a very small investment for the very positive impact of helping the rehabilitation, and recovery, and re-engagement into the workforce.

CAP provides this training either in person, by going directly to the military treatment facility, by doing it via VTC, by working with a rehab professional, demonstrating the assistive technology and helping the service members understand the options out there. I've been to many of these military treatment facilities and the first thing they always say to me, every time I meet a service member, is they want to go back. Well, I'm not sure I can do much for that.

The second thing they usually say to me, I want to stay in touch with my troops. That I can help them with. By providing them with the assistive technology that helps them stay engaged to use a computer, to use as an electronic information environment, because I truly believe anyone that was born after 1980 was born with a computer chromosome. Giving them that tool, letting them stay engaged, tells me they're going to join us once again.

We provide accommodations for people with dexterity disabilities; whether it's something because of a nerve damage or they've been so badly injured, different keyboards or at the high end, voice recognition technology. As you already heard, the hallmark disabling condition of this conflict is Traumatic Brain Injuries. We provide a whole gamut of tools, like tools that help them with their memory, tools that help them with their concentration. We provide those tools, but we also do something unique. Sometimes it's a combination of tools. Someone who has a traumatic brain injury or post traumatic stress, might find it easier to talk to their computer, even though their hands are fine, because that's the way they can communicate faster and better.

You may want to see the story of Matt Statten, Captain in the Army, injured, twice deployed. He talked about that he has mild traumatic brain injury and Post Traumatic Stress Disorder. He was also shot six times. His flak jacket stopped five, one hit his hip. But now, how does he function as a civilian in the Secretary of the Army's office? It's the way he uses his assistive technology, helping him with his memory, helping him track his information, helping him not be as frustrated. That's the benefit of assistive technology, is putting those tools together.

People with vision loss, we provide with technology so they can continue to use their computer. Or if they can't see at all, they can listen to the computer, like Captain Ivan Castro, in charge of recruitment at Fort Bragg, totally blind. Now that's a paradigm shift. See a military officer in uniform with a cane because that's how he can stay engaged.

We also help when it comes to other programs. We work closely with our DoD programs when it comes to hiring heroes and OPM when it comes to their veterans symposium and training conference. We also think another big initiative that we provide support to, is our Workforce Recruitment Program for college students with disabilities. We're finding more and more of our service members are going back to college. Great way to bring them back into the federal government is going through the college programs as they take advantage of the GI Bill.

We talked earlier this morning about retention. One of the things that I'm very proud that CAP has done is making sure that we provide the assistive technology and the computers so people can tele-work. Someone has Post Traumatic Stress, someone has a disability, may need to have the flexibility to work at home, that's how you retain them, is by making sure you provide them with what they need and feel safe and feel engaged. Retention's a key part.

So in closing, since CAP's inception we have filled over 106,000 requests for accommodations in assistive technology. We recently developed a videotaped online training on the Executive Order for increasing employment with people with disabilities, and the Executive Order dealing with our veterans. It is a simple website: I'm old, it's got to be simple. I got to be able to remember it.

We stay engaged and we believe in helping with the recruitment, placement, promotion, and retention of employees with disabilities and our disabled veterans. Thank you for the opportunity of sharing the CAP story and helping us all welcome home, our soldiers, our sailors, our airmen, our Marines. Thank you.

CHAIR BERRIEN: Thank you very much Ms. Cohen. We'll turn now to Vivian Eng Bendewald who is Program Manager for Student Veterans and Wounded, Ill, and Injured Veterans Employment Initiatives of the Veterans Employment Program at the U.S. Chamber of Commerce.

MS. ENG BENDEWALD: Thank you Chair Berrien and Commissioners. I thank you for the opportunity to be here.

COMMISSIONER FELDBLUM: You might want to hit your mike. Oh, you can leave it on the table, just make sure it's green.

COMMISSIONER ISHIMARU: Oh wait. I think it's unhooked actually.

COMMISSIONER FELDBLUM: Yes. Hook it up, okay, there you go.


PEGGY MASTROIANNI: Is it working? You want to use this one?

MS. ENG BENDEWALD: Thank you. Chair Berrien and Commissioners, I thank you for the opportunity to discuss the employment of veterans with disabilities. I am an employed veteran with a hearing disability. My work with the wounded, ill, and injured population focuses on transitioning wounded, ill, and injured service members from the military back to the civilian life and work. This requires mentorship, transition education, and employment programming centered on matching wounded, ill, and injured service members to meaningful long-term careers. With respect to employment discrimination against veterans with disabilities; a need for increased knowledge, particularly about veterans with invisible wounds, rests at the core of this complex issue.

I find it best to address employment concerns from three different perspectives. First, from the wounded, ill, or injured perspective. Second, from the employer perspective. And last, from the Chamber's programmatic perspective via Hiring Our Heroes employment initiatives. Working with the wounded, ill, and injured population warrior transition units, wounded warrior regiments, and private corporate employers has given me a deep appreciation for the immense amounts of effort and good will that exists in support of wounded, ill, and injured service members, veterans, and their families.

Companies and organizations have independently established wounded, ill, or injured employment programs, while creating communities across industries to best serve wounded, ill, and injured employment needs. These are hopeful measures that help establish a foundation of resources, understanding, and best practices for the employment of veterans with disabilities far into the future.

My hope in sharing information within the context of the U.S. Chamber's Hiring Our Heroes employment efforts is to show that creating, supporting, and sustaining a movement of collaboration, through connecting and educating corporate communities, encourages best practices for the employment of wounded, ill, and injured service members, their spouses, and their care givers.

A better understanding of wounded, ill, and injured service members and their diverse talents and changing abilities as they recover, learn, and advance in employment settings, can help to prevent employment discrimination and lead to better outcomes for both employers and employees.

Wounded, ill, and injured service members compose an extremely diverse population. Several variables contribute to this diversity. First, differing wounds, illnesses, and injuries invariably lead to different capabilities, particularly with respect to employment. Second, recovery rates, the time it takes a service member to heal. Further defined, ability differences and the need for a different transition in employment approaches. Third, healing outcomes tied to geographic and social environments, family and friend support structures, availability of opportunities, individual gumption, and a person's status as a service member, play integral rules in the definition and employment success of the wounded, ill, and injured.

Finally, service members are a very diverse population to start with, coming from a range of racial, ethnic, socioeconomic, geographic, and educational backgrounds. To understand wounded, ill, and injured employment and any issues that surround it, one must first appreciate the diversity of the wounded, ill, and injured population. Individualized approaches toward each wounded, ill, and injured service member are key to the success of the service member's transition and employment outcome.

For example, consider Josh, a wounded warrior who has an above-knee amputation. To Josh, engagement is synonymous with success only when participation is paramount to setting a wounded, ill, and injured veteran up for success. Josh currently serves as an intern with the Senate Foreign Relations Committee and attends Georgetown University. Josh believes that mentorship, relevant training, or education, and available meaningful work opportunities are the keys to successful employment for wounded, ill, and injured veterans.

Wade's experience also echoes this idea. Wade sustained a severe TBI after his Humvee rolled over an improvised explosive device in Iraq. This was before TBIs were diagnosed and transportation vehicles appropriately armed, armored rather. Wade and his four platoon buddies, all of who were in the blast, miraculously survived. Everyone of them was injured however. They all sustained TBIs. Today Wade is the only one who has not committed suicide.

Wade's TBI is an invisible injury. He largely attributes his deliverance from suicide to his enrollment in community college immediately after separating from the Marine Corps. The other four in his Humvee did not do this. Wade created the support network that he believes was key to his successful transition back to civilian life. Wade sought out mentors, maintaining a network of fellow wounded warriors, academic tutors, military leaders, and corporate leaders that he could count on for support, encouragement and advice.

By keeping mentally engaged, learning or relearning skills, and eventually graduating from George Washington University, Wade gave himself hope. He made use of his environment and his opportunities with the support of a network that understood him. By taking the time to rehabilitate his invisible injury, he regained mental strength, resiliency, and memory in preparation for reentry into the civilian workforce.

Wade believes his four Humvee companions experienced difficult emotional challenges related to the unseen wounds of TBIs. Wade is currently the Director of Operations for a private company and will be in Afghanistan for the next several weeks for work. He serves as a mentor for other wounded, ill, and injured service members and veterans.

While many veterans face difficulty transitioning to civilian life, wounded, ill, and injured service members and veterans face many more difficulties with respect to emotional health, physical health, and social integration or isolation. This is the case for wounded, ill, and injured service members with visible and invisible wounds, illness, or injury.

For both Josh and Wade, health concerns greatly influenced their willingness to pursue any opportunity, employment, education, recreational or otherwise. For each one, having an individualized plan for the transition back into the civilian world was essential for success. In terms of employers, I have already mentioned the immense goodwill that exists in support of the wounded, ill, and injured.

Employers throughout our nation see the value and need for employing the wounded, ill, and injured, their spouses, and their care givers. The impact of a service member's wounds, illness, and injuries on a service member's future is felt not only by an individual, but also his or her loved ones and his or her community. Employers understand this and many have stepped up to support the wounded, ill, and injured as both a corporate social responsibility as well as a corporate civic responsibility.

Both the size of business and the breadth of an industry impact employment opportunities for the wounded, ill, and injured. Employer needs are tied to finite resources, some more finite than others. Thus in creating employment opportunities for the wounded, ill, and injured, there is no algorithm to define best practices due to the diversity of the wounded, ill, and injured population, as well as the needs and business abilities of a given employer.

For this reason, I can only relay anecdotal examples about the employment of wounded, ill, and injured service members, or veterans, and their spouses or care givers. It is worth mentioning however, that the most successful wounded, ill, and injured employment programs, within large, medium, and small businesses throughout America, include veterans, military spouses, or sons and daughters of military members on their staffs.

Program success is measured by the number of wounded, ill, and injured service members that are employed, the longevity of their employment, and the reach of the program within its corporate community as well as the military community. I'm going to skip ahead because I realize that we're out of time.

However, I would like to mention that there are two companies in particular, API Group and Northrop Grumman. Northrop Grumman in particular for the Operation Impact. They have created a community of different corporations and mentored them, in terms of understanding employment for the wounded, ill, and injured. And so I think that this is the model.

I know that there is initiatives for small business coming through, and that small business is probably one of the key factors moving into the future for the employment of the wounded, ill, and injured. But the amount of education that needs to happen in order to address concerns and fears of hiring the wounded, ill, and injured particularly with TBIs or PTSD is key. And that TBIs and PTSD, that's all curable and that we remember that moving into the future, there are programs like Hiring Our Heroes where people can come to a career fair and initially see what is out there. And then follow-up by taking interviews, and by using the great programs that have been mentioned here in the future. So I thank you for your time.

CHAIR BERRIEN: Thank you very much Ms. Bendewald. And finally, we'll hear from Anne Hirsh who is Co-director of the Job Accommodation Network.

MS. HIRSH: Thank you Chair Berrien and thank you Commissioners for inviting the Job Accommodation Network to be a part of this important conversation. I'm honored to be with you today representing JAN. As you may know, the Job Accommodation Network is a service funded by the U.S. Department of Labor's Office of Disability Employment Policy or ODEP.

We provide information and consultation on job accommodation, individual rights, employer responsibilities under the Americans with Disabilities Act and other relevant employment legislation, as well as a self-employment program opportunities for individuals with disabilities. Annually, JAN responds to approximately 40,000 inquiries working towards solutions that benefit both employers and employees.

Through our service we have and continue to support wounded and injured servicemen and women who are transitioning into the civilian workforce. We also work with the agencies that assist them and the employers that hire them. Through our toll free phone lines, email, and our unbelievably popular internet chat service; we provide one on one consultation for employers and service members transitioning back into the civilian workforce by educating them on how to, and what to consider as a job accommodation to enable the individual to effectively perform the job.

For example, JAN provided information about an amplified stethoscope for a nurse who developed a hearing loss as a result of combat and was transitioning into work at a civilian hospital. Another example of the services JAN provided was discussing with a veteran with a traumatic brain injury, how and if to disclose to a potential employer, and what the implications may be in the workplace. JAN has also educated employers about PTSD to dispel the myths and fears employers may and certainly do have about PTSD.

In addition to our one on one consultation, JAN has provided customized live and remote training on job accommodation and employment issues of veterans with disabilities at veterans related events around the country. One example is a session conducted for 20 military career counselors for the Navy Fleet and Family Support Center. This training focused on teaching career counselors how to educate service members and their families who are transitioning out of the service because of a disability or a medical condition, on their employment rights in the civilian workforce.

Also, each November JAN hosts a webinar specifically focused on accommodation and employment for wounded and injured service members, with over 500 sites participating from around the country. JAN has also conducted training sessions with state workforce systems, private employers, the Veterans Administration, federal, state, and local government employers and service members themselves.

JAN also supported other initiatives focused on returning service members with disabilities. As an example of this, the U.S. Department of Labor's project America's Heroes at Work, which addresses the employment challenges of returning service members living with TBI and/or PTSD, an excellent resource. JAN assisted in the development of the project by providing resources for and guidance on the development of the website.

Finally, I want to mention that JAN conducts research on the cost and benefit of accommodation. This research involves surveying people who have used the JAN service and getting information about accommodations that have been implemented. With the feedback from these consultations, JAN includes real life accommodation situation solutions in its documents.

JAN's website includes links to veteran and service member resources, as well as JAN documents that describe situations in which a wounded or injured service member was successfully accommodated in the workplace. We have one page dedicated to veterans' topics which give guidance specific to PTSD, TBI, burn injuries, vision loss, hearing impairment, all the more common conditions. From the research we do related to cost and benefit of accommodation, employers tell us 56 percent of the time, accommodations cost absolutely nothing. When there is a cost, that typical cost is $500.

In summary, JAN has and continues to educate employers about the abilities of returning service members and veterans with disabilities, as well as their responsibilities to not discriminate against any potential or current employee. One of the more common issues when we're talking, something that is more particularly about retention and keeping somebody at work, we try to bring it back to those solutions and practical ideas to situations where people can remain at work.

Oftentimes with this veteran population, we hear of a disconnect in terms of the terminology, as has been mentioned previously, the word disability is not usually in their vocabulary, and that's an important tool that we use to try to educate them about what their potential rights might be, and how to talk about their specific situation. Thank you for the time and I look forward to questions.

CHAIR BERRIEN: Thank you very much Ms. Hirsh. Thank you all for your excellent testimony. We will have a round of questions from each of the Commissioners and they can be directed to any or all parts of the panel. And we'll begin with Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Are we doing multiple rounds?

CHAIR BERRIEN: Yes. I'm sorry -


CHAIR BERRIEN: We will have an opportunity for a second round, but we plan to take a break in between them.

COMMISSIONER ISHIMARU: Okay, great. Thank you Madam Chair. Thank you to the panel. It was very helpful, diverse, group of views and I appreciate that. One thing that strikes me in our current experience over the last ten years of the deployment of more Guard and Reserve troops, where people are pulled out of everyday lives and sent off into combat in increasing numbers have been subject to disabling conditions after they come back.

Do you find, and I guess this is really a question for Mr. Parker and your colleague. Is there a difference in the unemployment rate of Guard and Reserve members who come back who are covered by USERRA, I would assume if they had a job, versus regularly enlisted military members who come back? I've not seen any data showing a disparity. I assume there is a disparity because people who are in the Guard and Reserve, I assume usually had jobs before they were called back. Do you know if there's data that exists that breaks it up between Guard and Reserve groups and regular enlisted folks?

MR. PARKER: That's a good question. I have not seen any data, but I can say that you're correct when you say that most of the Guard and Reserve members, when they deploy whether they did have jobs. Those that enlist probably did not have jobs because they're just coming out of high school. And then you may have some that did have jobs that enlisted a little later in life. But as far as a number to compare a difference, I'm not really sure if there are any numbers to indicate that.

MR. TORRANS: Well, if I may? Can you hear me all right?

COMMISSIONER ISHIMARU: Why don't you come up to the mike, it's vacant, so we can hear you better, thanks.

MR. TORRANS: All right.

CHAIR BERRIEN: And for the record, if you can just make sure to state your name.

MR. TORRANS: Okay. Can you hear me now? Okay, much better, thank you. Data on that, if there is data, might be available through Department of Defense, possibly through ESGR, National Committee for Employer Support of Guard and Reserve. And the difference between the employment rates for individuals who enlist in the active service versus those who are members of the Guard and Reserve. I've not seen data on that per se. But if it does exist, they may have it.


MR. TORRANS: And ESGR, National Committee for Employer Support of Guard and Reserve, I can provide you with our contact information if you don't have it, they're a DoD agency based in Rosslyn, Virginia. And their direct dial telephone number is (703) 696-1386. I've never called it before, but they may have it.

But what Mike was saying with respect to the employment rates, it is correct. The individuals who are members of the Guard and Reserve typically will have civilian jobs and those that, but it's also important to remember that USERRA also covers individuals who enlist, who leave civilian employment to enlist in the regular military. And if that's the case, if they meet the eligibility criteria for reemployment rights; then they may have a job to come back too. But there again, there are some that enlist right out of high school and may not have a job.

COMMISSIONER ISHIMARU: So people who have a job, quit their job, enlist in the military, have rights under USERRA to go -

MR. TORRANS: That's right.

COMMISSIONER ISHIMARU: -- back to that job even though they quit the job?

MR. TORRANS: That's correct. There are five eligibility criteria for an individual to retain reemployment rights. To summarize very briefly, number one, they have to leave civilian employment to military service -

COMMISSIONER ISHIMARU: No, no, we can get that. I certainly appreciate that. For the record, your name is?

MR. TORRANS: Kenan Torrans.

COMMISSIONER ISHIMARU: With the Department of Labor?

MR. TORRANS: With the Department of Labor, Chief of Investigations.

COMMISSIONER ISHIMARU: Excellent. Thank you very much. And Ms. Fanning, you talked about the percentage of veterans who are, what I'm trying to figure out is of the overall number of veterans coming back, how many veterans are able to work? You talked about the converse, I guess, of veterans who were in a situation where they were unable to work. What percentage roughly of veterans are able to work? Roughly?

MS. FANNING: As you heard Heather comment, I believe that the majority of individuals who have disability conditions are able to work. We have advanced so much in medical technology, largely through sports medicine, and Department of Defense, and others' research, that there are so many accommodations available. And accommodations are very inexpensive, as you've heard.

I think the main issue is that initial adjustment for the individual to their disability. And whether they define themselves according to that disability or if they're able to make a successful adjustment and realize that that is just a part of them. And that with accommodations, whether they're memory devices which I can tell you, I use. Whether it's a cane? Whether it's the mirror to see who's behind you, or facing your desk so that you're not away from the door but you're facing the door. There are accommodations that can be made. It's a matter of getting individuals connected with services so that they can, first of all, adjust to the disability, move past it, go through that grieving process that we would all have to go through. Not only of losing a career that perhaps they planned to be long-term, but also now of having an issue that affects their body or their mind in some way. And then getting past that into appropriate services -

COMMISSIONER ISHIMARU: No. I certainly understand that. I guess what I'm trying to get to though, you had mentioned people who are just going to be unable to work. And I guess I'm trying to get a feel for, is that five percent? Is it ten percent? Most veterans, I take it from your answer, will be able to work if they have a disability and need some sort of accommodation, could work if they had the accommodation. I'm trying to figure out how many people will likely not be able to work with or without an accommodation.

MS. FANNING: In our program, the majority of veterans have serious employment handicaps. So as the percentage of disability increases, the percentage of veterans in our program with that disability increases. And we find that veterans who are 100 percent, are able to work. We've just recently, a veteran here in the D.C. area who is the deputy for one of the veteran service organizations, who is blind, completed law school through Voc Rehab and got immediately, a high level job. I've worked with veterans with high level spinal injuries. Again, another veteran who became an attorney, we don't train everybody to be attorneys now.

COMMISSIONER ISHIMARU: Even though they were 100 percent disabled under the VA -

MS. FANNING: Yes sir. And I think again, with that statistics that, pardon me, that Heather mentioned that only 27.9 percent of those who are rated 60 percent or higher are employed. It's a matter of them becoming connected with services, of them successfully adjusting to their disability, not getting kind of into that welfare system where they're stuck. Because with 100 percent individual unemployability rating for example, it's hard to give that up and get a job when you know with that rating, you can send your kids to college, your spouse can go to college, you have full medical benefits for your whole family, it's hard to give that up. And so there are some disincentives built into our society with good intent to take care of these very seriously disabled folks. But we all define ourselves by what we do.

And so yes, I think everyone can work. I think for some it will be supported employment, for some it will be part-time employment. It may even be volunteer employment. But I think everyone can work and that contributes to their health long-term.

COMMISSIONER ISHIMARU: All right. Thank you. Thank you Madam Chair.

CHAIR BERRIEN: Thank you. We'll turn to Commissioner Barker.

COMMISSIONER BARKER: Ms. Ansley, you had a lot of interesting data in your speech. I wanted to ask you about a little of it that piqued my interest. In your comments, you report that the Bureau of Labor Statistics reported that as of July 2010, 13% of veterans reported having a service-connected disability. But of veterans from the wars in Iraq and Afghanistan, that percentage was 25%, huge difference. To what do you attribute the difference, the higher percentage rate of disabled out of Iraq and Afghanistan?

MS. ANSLEY: Thank you for the question. Some of that would be perhaps speculation, thankfully because of medical advances, we do have people on the battlefield who are surviving injuries, that quite frankly people just didn't survive in the past. And so we are able to return more people, but consequently they have more significant disabilities or long-term impacts from their injuries.

So it could be a variance of factors from societal changes, that includes people who go back to World War II, and differences in how you view yourself and how you view disability. But I think part of it could be contributed to, like I said, to the advances that have been made. And that we have a warrior that is returning who is a new type of disabled veteran, in some cases that we haven't necessarily seen before.

COMMISSIONER BARKER: And you also said that workforce participation rate of the veterans from the Iraq and Afghanistan wars was 63.7% compared to 86.2% for veterans without a service-connected disability. So is 86.2%, since 86.2% is the percentage of employed veterans who don't have a disability, is that the percentage that is like the target? Should that be sort of the target percentage to have the percent of veterans with disabilities who are in the workforce the same as veterans without disabilities in the workforce?

MS. ANSLEY: Certainly, I would say the same or better. Anyone we believe can work with the right supports and services. Many people want to be able to contribute to their communities however it is that they are able to do that. And we would certainly support the systems that allow people to do that. And then to encourage our employers to see that disabled veterans, people with disabilities can work and that many times, I think it's a fear factor of not knowing how to address issues. But once you really start to dig into it, as we've learned today, accommodations aren't as costly or maybe even as difficult to think about. It is more common sense. And that we really just need to focus on helping people to return. I've heard many people say that getting a job is one of the best re-integrations that you can do. It's what defines most of us.

COMMISSIONER BARKER: Thank you. And Mr. Decker, I notice that you are a retired Marine pilot. Is that right?

MR. DECKER: That's correct.

COMMISSIONER BARKER: And when were you, just out of curiosity, when and where were you a pilot with the Marines?

MR. DECKER: Excuse me ma'am. I didn't hear.

COMMISSIONER BARKER: When were you a pilot with the Marines and where were you stationed?

MR. DECKER: I received my wings in 1974 and I was stationed on the East Coast and then overseas. I have served in Iraq and Afghanistan.

COMMISSIONER BARKER: Well, thank you for your service. And I'd like to mention that of my staff, 30 percent of them are disabled, well, not disabled but veterans. Of course, that sounds better than it is since I have a huge staff of three.

COMMISSIONER ISHIMARU: The percentages are very good.

COMMISSIONER BARKER: But I would point out that our veteran, Kelly, is a retired U.S. Marine, so if you have an opportunity, stop by and say hi to Kelly.

MR. DECKER: Thank you.

COMMISSIONER BARKER: Thank you, sir. Thank you all.

CHAIR BERRIEN: Thank you Commissioner. Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you so much. Thank you Ms. Fanning and Ms. Ansley for saying that everyone can work. Jennifer Mathis, who had been a special assistant for me for a year and is now back at the Bazelon Center used to say that to me. And it sort of finally did get through to my head that, in fact, probably everyone can work. It might be with supported employment. It might be a volunteer employment, but I think that would be a huge shift in the culture of our society if we started thinking that way.

Now, that doesn't mean we should not as a society have that social safety net of disability benefits, and I think it was important Ms. Ansley, that you noted that there was some support for veterans in terms of their benefits, that they're not being as afraid to go and get work. But I think if there's something that can come out of this conversation, it's subbing for that culture shift.

So I have a general comment, observation that I would simply invite anyone's reaction. Someone mentioned about EEOC collaborating with other agencies. And I have to say here that my take, both in reading the testimony and then hearing it here today; is that there's not so much, sort of day to day type of collaboration that I would see between EEOC and some of your agencies. It seems that collaboration between DOL, DoD, VA, and OPM on the programs that you're doing; that's the sort of day to day integration collaboration that you seem to be doing very well and I applaud you for that. And I think we need to be doing our job as the EEOC of insuring that people's rights are enforced if they are discriminated against.

Okay, here are the two things that seem to me, listening to this, that would make sense to do, so reaction welcomed. One, I think it would be good if every single program had a handout from the EEOC. Maybe only two to three pages Joyce, that simply explained the breadth of the ADA and the rights under the ADA. Because Mr. Parker, based on your statement, I actually think the ADA is probably broader than USERRA definition of disabilities. Since that definition requires showing a substantial impairment on the ability to do a job, which ADA does not have. I mean it never really had, but it, sometimes, it was interpreted that way. But now it just doesn't, so you don't even have to get into the issue of you're impaired it to do a job in order to get the protection; you're just protected, you have PTSD. You have the impact on the major bodily functions. So I think there's a utility in getting that handout. And the same one that everyone should just be giving out.

The second is perhaps just a one-pager with some resources. Whether it's the Chamber's project, the American Association of People with Disabilities, JAN, just one-pager that had, like DOL, VA, EEOC, DoD across the board with, we care about vets and the resources that people can have; because this issue of people not self-identifying as a person with a disability, and instead identifying as someone who is part of the military, is very understandable.

But I feel like we need to offer a way that gives people that entre into another community as well. I have ideas we should allow them to opt for one free subscription to something because I think people like to get something for free. I don't know what there'd be a subscription to, but anyway. So those are my two thoughts and I welcome reaction comments.

MS. COHEN: I'd like to start off. Thank you very much for your comments and I think there is a wealth of experience, and knowledge, and an opportunity to share. I agree with you, we have on our website, but we also have one, if you just go to the website that shows our military saluting that focuses specifically on what we can do for our service members. And we do have links to ADA. We have links to other legislation because they do need to know it and they don't.

And having that ability to say that even though I wear this uniform, or have worn this uniform, I have also other protections based on my new functional limitation, based on my definition of disability. Having the role models, and we are starting to identify more and more role models that are both the active duty military, the separated disabled veteran, who is equally as comfortable talking to the population of people with disabilities and disabled veterans.

Helping them cross that bridge, actually showing them that being or using the term disability; it doesn't impact or take away from their warrior status. And that's something that only certain people can really say well, when I walk in the room, I'm still a yes ma'am, but when somebody walks in there, has worn that uniform and can tell that message, it really becomes a message of true clarity.

So we start to and have linked with many of the programs here specifically so that when they go to that specific website on our site that focuses on that; it looks and feels like their warrior page and includes the disability issues. Because they are really one of the same and having them feel more comfortable using the terms and being part of that population will continue to be a challenge.

But that's why we try to introduce assistive technology as soon as they come to the military treatment facility so they stop thinking of it as the stuff for them. But it's now stuff I can use and, most of it was developed by the military, for the military, so it's really cool. So I think that's again, how we start to bridge that gap between these two populations and help educate them and collect those resources. And I think the one pager would be great. I'll be happy to schlep it around.

COMMISSIONER FELDBLUM: Great. Ms. Fanning and then Mr. Parker, and then I'm sure my time will be up.

MS. FANNING: I completely agree. I think it would be extremely useful. I think what we're all striving to do with our web pages is to have the same information available about all of our programs so that there may be many doors, but once you walk through that door you're in the same room. And all the information is there, so the more that we can do that and get information onto our site, we're really interested in doing that.

And I also wanted to comment that I really agree with what Ms. Cohen said, getting role models out there. You know, the Real Men Have Depression campaign was extremely successful, getting men to actually step forward and seek treatment that was needed. And I think normalizing this issue, letting individuals know that, look if you consider disability a minority; it's one that we're all probably going to belong to at some point in our lives. So using the common approach techniques that you talked about earlier, I think a public awareness campaign is extremely important. But also just on an individual, manager level, when we're talking with our employees, if we say what do you need to be more productive? It's not about disability, it's about what does that person need to be more productive. And I used the example, just yesterday at another event that I was speaking at. My brother, God bless him, is 6'7" and I don't know that you would consider tallness a disability; but if he sat in the typical cubicle, it wouldn't be long before he needed medical treatment. And so having the employers just take the attitude with all of their employees, what do we need to do to make you most productive; takes disability really off the table and focuses on skills and abilities.

COMMISSIONER FELDBLUM: My time is up. But Mr. Parker, I think the Chair might give you three sentences. MR. PARKER: Oh, very briefly, I would like to say that yes, there are resources available as you said. And I'd agree with my colleagues on that as far as the resources capture what everybody does. And there is a, it's called the National Resource Directory, which you can Google it and that will get you into all the resources that you ever thought about for transition but was afraid to ask basically. And it's also located on Facebook also. So it is a very good resource to use.


CHAIR BERRIEN: Thank you. Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you Madam Chair. Mr. Parker, you had said in your testimony that the lack of a VA rating as to disability is not dispositive, I think for USERRA purposes, was that right?

MR. PARKER: Right.

COMMISSIONER LIPNIC: And so could you just elaborate on that a little bit for --

MR. PARKER: I have to --


MR. PARKER: I have to let my -

COMMISSIONER LIPNIC: And before you answer, the second part to my question is similar to what you were all just talking about; to what extent do disabled veterans feel like they have to have that VA rating in order to help them advance and obtain a job?

MR. TORRANS: Well, first of all, a VA rating decision is a formal determination by VA that a disability or an injury was incurred in service. In VA, it's a term of art, prior to VA Service Connection, it's actually a disorder. Once the VA has granted service connection, in the VA world it becomes a disability. But for USERRA purposes, the VA rating is not dispositive. It's not key because the disorder or an injury wound may be transitory. It may not be permanent. It may just require a minimum of assistive technology or anything else. And for that reason, they can, an individual a line of duty determination, a military Physical Evaluation Board determination, any of those will suffice to show that it was incurred in service.

The other part is, the VA disability process, in a past life I was counsel to VA and I once had a case, an appeal that went back to 1939 for service connection. And that, in the appeals process can take a long time. And these folks need to get re-employed right away. They've got under the USERRA standard, they've got 14 days to be put back to work absent exigent circumstances. So if it's reasonably certain by a preponderance of the evidence that that disability or that disorder was incurred in service, didn't exist before; then we would assume that we would say okay, it's a viable or a valid claim and the employer has to make reasonable accommodations for it. And if you could repeat the second part of your question?

COMMISSIONER LIPNIC: Well, I was just interested in, given the discussion about whether, to what extent does VETS, if Labor Department feel like you sort of have to overcome that notion, I suppose, by veterans that there has to be a VA rating?

MR. TORRANS: Right. And there again, this term, service-connected is a term of art, but it's not necessary. Some people believe that it is, and when I speak to individuals about wounded veterans coming back and service members with disabilities; I do encourage them to go to VA and apply for service connection, because it gives them treatment, access to more treatment than they might otherwise have, other benefits that they might not otherwise get, but it's not critical for the reemployment process. And that is one of the things when we do our outreach, we do try to make it clear to these folks that you don't need to have service connection, a formal determination for that, but some of them do believe it is necessary.

COMMISSIONER LIPNIC: Okay. Thank you. And Mr. Decker, you had mentioned in your testimony, you talked about encouraging, I presume other federal agencies to use all their hiring authorities, and any and all hiring authorities available to them. So I was wondering if you could elaborate for the record, about all of those hiring authorities?

MR. DECKER: Commissioner Lipnic, let me just mention that there are a number of special hiring authorities for veterans and for non-veterans. And I think you're familiar with some of those that deal with people with disabilities. On the veterans' special appointing authorities, and I will ask my colleague Mike Mahoney to come up to the dais, is that there are several that are applicable only to disabled vets, and some that are applicable to all veterans to include disabled vets. So the net is pretty broad on that. Mike, if you would, why don't you quickly just run through the appointing authorities for the Commissioner?

MR. MAHONEY: Can you all hear me? Okay. Madam Commissioner, in response to your question, we do have a lot of ways to hire folks in the federal government. As Ray indicated, we have three that are specific to veterans. And without going into all of the acronyms, I think he eluded to one during his initial testimony, which is specific to 30 percent or more disabled veterans. We also have two other hiring authorities specific to veterans, which can include disabled veterans. So that's three ways that disabled veterans can be considered for federal jobs outside of the usual way that a U.S. citizen would apply and be considered.

Now a disabled veteran can also apply and be considered just under the usual way, and he or she would get his or her preference in hiring. So that's four advantages. Disabled veterans can also apply under our excepted authority; Ray eluded to it, the Schedule A for people with disabilities. As Ray said, that's not designed specifically for disabled veterans, but disabled veterans can certainly avail themselves and apply under that authority.

Ms. Cohen indicated that many veterans are utilizing the GI Bill. They may be in school. We have a student employment authority that veterans can always apply for and disabled veterans can apply for that as well. So we're talking about six, maybe seven different ways outside of the usual form of competition that disabled veterans can apply for and ask for consideration for federal employment. And those are huge advantages and as Ray indicated, we always advise job seeking veterans, disabled or otherwise, to be sure and put on your resume, ask for consideration under as many of these authorities as he or she may be eligible. Did that respond to your question ma'am?

COMMISSIONER LIPNIC: Yes. Thank you. And I'll just ask broadly, this is, going back to something that Commissioner Ishimaru said in his opening remarks about having met with so many people when he was working on the Armed Services Committee, who are trained with very sophisticated technologies and I think Stuart, you said that was 20 years ago, so 20 years later imagine what all that is like.

So I guess I'm having a hard time sort of reconciling that level of skill and training, and on that type of equipment, if equipment is even the right word, with what I hear from employers all the time is, we have such a hard time getting skilled people. So setting aside the current unemployment situation; I wonder if any of you can sort of help me bridge that gap or explain to us what is that gap? I really struggle with that when I think about GDs or people who have been trained on such sophisticated systems; where is the disconnect then with the employers and maybe, Ms. Bendewald, if yo

u want to talk about it from the Chamber's perspective, where's the disconnect, particularly with private sector employers?

MS. ENG BENDEWALD: Thank you for the question and it's a very important piece of why there is such high employment right now for veterans. I think that it is a matter of time and understanding, it's communication. I don't think that there is any intended ill will towards veterans in terms of employment. But I think the major factor is that an employer may not understand exactly how quickly somebody that's been trained in the military can pick up on these skills. Because we are on always a time line when we're in the military. And so to come out, and then to be presented these jobs, a lot of employers do not know the quickness of learning, the attention to detail that's drilled into us from the time we start in basic training. So I think that if there's a place where we can work toward improving employment outcomes and career outcomes; it is helping people understand that there is absolutely a need to give the time, and take the time to tell -- we're very obedient, as a veteran population.

Just tell us what you want. I mean just to lay it out. I can't tell you how many situations I've been in with a civilian employer or somebody that I'm working with that has always been civilian, who will not identify all of the different goals, or all of the different parts of a situation that they want me to handle or they want a veteran to handle. If you lay out the guidelines, we'll follow it and we're really good at it. And I think that that is the disconnect, just to have the work on the employer in the beginning to just outline what it is that's needed. And then from there I think that it would be an amazing employee/employer relationship.

And also I just wanted to touch very quickly on the idea of putting out information for resources, because that is a huge part of it. I think we all have very amazing websites, but by and large they're visited by people who already understand them or who are already seeking this. That's not why the resources need to be out there. The resources need to be out there for the civilian population, for civilian business, and private business, small business particularly. And I think that if there's a way to do it, perhaps partnering with media networks, Facebook is wonderful, but media networks in terms of news media. There's been a lot of great, great, things that have been happening from stories that have been coming out for veterans and wounded warriors.

COMMISSIONER LIPNIC: And I'd be interested in any other comments but I am out of time. So if we're going another round, if anyone wants to respond, happy to do that.

MS. HIRSH: I would like to respond if there's time.

CHAIR BERRIEN: I think we'll be able to pick it up in the second round.

COMMISSIONER LIPNIC: We'll save it to my round again.

CHAIR BERRIEN: Great, thank you. Actually Ms. Benewald, I'd like to pick up where you left off. I think if there's a common theme and certainly, something that was common in the information you all shared with us are some thoughts about what we can do to provide information to more people and effective ways to get it out there. And I really appreciated your thoughts.

Several of you mentioned work that you do to place returning veterans on campuses or support the effort to obtain higher education. So at least one of the things that, perhaps grows out of that, is that we ought to focus at least some of our outreach as well in a campus-based way, or perhaps make connections with campuses.

And also, many of you mentioned how important it is now to deliver information through computer assisted technology in addition to, or perhaps in lieu of, some printed formats. But I want to be sure that we get as broad a set of input as we can, as Ms. Walker-Jones noted, we'd like to update our guides for veterans with service-connected disabilities and for employers.

So I would like as specifically as you can, any feedback that you'd like to give us now about either the content that would be important for us to include, or ways for us to more effectively reach the communities and audiences that you work with. I'll start with Ms. Hirsh.

MS. HIRSH: Excuse me. In the work that we do, I think one of the most important lessons I've learned in terms of communication with veterans is the most successful way is veterans to veterans. So any bringing in veterans to help review and look at the terminology and the language that you're using, as well as in terms of your output, reaching out to veterans in local communities and local meetings that they're having, to be able to have that veteran communicate directly with a veteran.

CHAIR BERRIEN: Thank you. Ms. Bendewald?

MS. ENG BENDEWALD: I think that outreaching to populations of families and people that know veterans is a great area to get into. So for example, Student Veterans of America, they have direct networks onto college campuses. And most of your wounded warriors coming back, they don't want to be isolated as a wounded warrior. They want to be included. So if you have the ability to contact the people that they would be going to class with for example, somebody that they might be a friend with that is a civilian. And then they would just tell them hey, I heard about this program and I would love to have you, I think it will be great for you, let's go, that kind of grass roots outside of the veteran population connection would be great.

CHAIR BERRIEN: Thank you. I'm going to try and go around so we get as many as we can. Ms. Cohen?

MS. COHEN: Of course, just having the link to our website that shows the assistive technology, but I think more importantly to stay with the role model issue, we have a couple of videos on our website of military folks who are now using assistive technology. And to me that's one of the best ways to break down the barriers, is to see Matt Statten talk about how he's using assistive technology because he has traumatic brain injury. To see Captain Castro talk about how he uses assistive technology that allowed him to stay active duty. So again, it's a warrior to warrior conversation. They're on our website at, so makes it easy for you to link to, promote the assistive technology, and have them tell the story of how they've used the assistive technology, I think is a good way to start.


MR. DECKER: Madam Chair, I would just confirm what Dinah just said. The power of those testimonials on the website, and we use the same mechanism to relate to veterans, particularly the younger vets from Iraq, Afghanistan. The second point I would make is we do a lot of social media. We use our Facebook account as well as our Twitter account to get information out. And we find that that is very effective reaching many of the Gen X, Y, and millennial that want information.

CHAIR BERRIEN: Thank you. Ms. Ansley?

MS. ANSLEY: I think the one thing that is helpful for us to think about is developing -- we want to keep it simple but to develop some different types of outreaches. It's helpful to remember that all veterans who have disabilities didn't acquire them in the same way and at the same time.

My father-in-law is a Vietnam veteran and it was many, many years before a cancer related to Agent Orange took his life. And so I think we need to remember that we have veterans who acquire significant disabilities right away. We have veterans, who because of their exposure to chemicals or circumstances, their disabilities are going to appear later. Or veterans who receive healthcare benefits but may have disabilities not related to their service. If you're catastrophically disabled for instance, you come back, you don't have a disability, you get into a car accident, you acquire a catastrophic disability, you are now eligible for VA healthcare, not necessarily the monthly disability compensation, maybe pension that gets too complicated. But there's healthcare that's available. So we need to think about the different aspects of how to reach out to veterans, because when we use terms like service-connected, that means something in the veteran community. And so we do need to bring in that culturally competent piece.

One of our board members is a quadriplegic disabled veteran. He went through VR&E's program, worked for 40 years, and is still a tireless advocate for the work of disabled veterans. And he reaches out and does the testimonials and writes about the barriers he's faced and how to address them. So that's another piece. And also, don't forget our veteran service organizations who work with veterans. They can be very helpful in these situations.

CHAIR BERRIEN: Thank you. Ms. Fanning?

MS. FANNING: I think the one thing that we've learned by working on the college campuses and our new Vet Success on Campus program as well as the Voc Rehab counselors have always worked on campus with veterans with disabilities, is that more resources, more training is needed for the career counseling centers on campus for their placement centers, for their guidance counselors, and even their counseling department.

We've had psychologists walk veterans to our Vet Success on Campus counselor because the veteran had Post Traumatic Stress Disorder and the psychologist really was not sure how to deal with it. So I think we need to develop tools for the professionals on campuses so that they're aware of the different experience these individuals have and can deal with them.

And also, so that they're cognizant and sensitive to the fact that they're coming onto campus with a completely different life experience than the typical 18-year-old. And setting up special orientations perhaps for veterans, so they can meet each other and start forming that cohort. And recognizing that even a professor, I've heard from a veteran, asking questions that are inappropriate to someone who just returned from combat. Did you have to kill anyone? Those kinds of things are sensitivity issues that colleges just really need to be made aware of so that veterans aren't uncomfortable among this giant peer group that really is three to five or more years younger than them and who can't relate to the dramatic experience they've just undergone.

CHAIR BERRIEN: I'm going to honor our timing light and I'll ask if our colleagues from the Department of Labor could defer their response to the second round of questions. And just as Commissioner Lipnic's question will get picked up in the second round. We will take a very brief break.

I know that some have very tight time constraints, but I think we need to take about a ten minute break. That means we'll be back here at 11:53? And we really do want to start on time so that we can take the full advantage of having this tremendous panel here. Thank you all.

(Whereupon, the above-entitled matter went off the record at 11:43 a.m. and resumed at 11:50 a.m.)

CHAIR BERRIEN: Good afternoon. We're going to call the meeting back to order. We ended after our first round of questions. We will go to a second round of questions. This is a shorter round, please be aware and the responses in this time that each Commissioner will only have five minutes for the question and answers that they're going to pose. So we appreciate your efforts to work within that. And we know that at least one member of the panel may have to leave a bit early. We'll do everything we can to get through all of this. Thank you. So we'll start with Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Well thank you Madam Chair. You know, yesterday in the Washington Post there was a story on the front page. It said troops feel more pity than respect. And I thought that sort of hit it on its head that veterans are not wanting from the pity aspect; they want to be respected as members of our society who have given a lot during their service.

And Mr. Decker and I were talking during the break about the government's role in setting goals for employment of veterans and increasing that on a pragmatic basis from year to year, which I think is good to have because metrics are good because people know what the target is. Ms. Benewald, does the Chamber support the use of metrics, of setting goals, numerical goals from year to year to try to increase the use of veterans in the private sector? Do your members support that?

MS. BENEWALD: In terms of in each company or in terms of the metrics for hiring?

COMMISSIONER ISHIMARU: Within each company for hiring veterans and for hiring disabled veterans, do your company members of the Chamber support the use of metrics to measure your progress from year to year?

MS. BENEWALD: Absolutely. I think it's important, I don't know if you can hear me but it's a very important part of it. I think that starting from our hiring fairs, we make sure that we track as many of the metrics as possible. But of course, when we have companies coming and participating in our hiring fairs; it's also on them to report back as to how many are hired.


MS. BENEWALD: So the metrics tell us what programs work.

COMMISSIONER ISHIMARU: And in setting the metrics, do you look at availability within the workforce, or do you look as, I believe Mr. Decker at OPM, the government's rule or view is we should try to increase it from year to year by a certain percentage. Do you look at it that way? Do companies look at it that way or do they look at who's available, who's able to work, how do we increase our underutilized veteran population?

MS. BENEWALD: I can only speak anecdotally from the companies that I've had experience with. But what I do see is that companies will independently set up their own metrics, their own quotas if you will, I don't like to use the word quota.

COMMISSIONER ISHIMARU: Well no, but their metrics, there are measures to see how you're doing and whether you're hitting it or not, and businesses do this all the time in how they run their businesses.

MS. BENEWALD: As do schools.


MS. BENEWALD: And so it's very similar the way that a university will run it's acceptance of veterans, particularly when they're drawing GI Bill funds because it's by law. And also, at the corporate level in terms of hiring. EEOC compliance for example.

COMMISSIONER ISHIMARU: Right. So would it be fair to say that the Chamber generally would support the use of setting metrics for increasing the hiring and retention of veterans and disabled veterans?

MS. BENEWALD: It's hard for me to speak for the Chamber as a whole because of the program that I work on. It is not representative of everything that the Chamber may have as a goal. I think that the Chamber largely supports the veterans and I feel I'm getting into a sticky position here.

COMMISSIONER ISHIMARU: Well, but the problem is that you've talked about good will and I agree that there's a lot of good will and you want to hire -- people say they want to do it. But I guess, when you look at the disparities of people not getting hired; I'm trying to figure out how you actually get people onboard and how do you keep them, and how do you measure progress. And quite often, when the use of metrics come up, the difficulty is, is that people say well, we can't measure because that will form a quota. When, in fact, it's a tool that businesses use all the time to measure progress, and to measure how they're doing. And when the CEO says I want to get something done, people get that. People will work to the metric.

And the other day when Secretary Panetta met with CEOs around the country, I don't know if this came up during the course of the conversation; but this is something that most CEOs that I've talked to have said, we understand metrics, we know how to use it and we will use it for our business purposes to make it work.

So I don't want to put you on the spot because I know you're not in a position to answer this, but I think it's a difficulty if we can't make the leap from just mere good will to the question of, how do we measure our success and how do we hold our people accountable. And I think the government does that to a certain degree and I would hope that businesses and the Chamber, and other business groups would think more about, how do we use this successfully in making progress? And with that, my time's up. Thank you for your answers. I appreciate it.

CHAIR BERRIEN: Thank you. Commissioner Barker?

COMMISSIONER BARKER: I wanted to ask Mr. Decker, oops, about the hiring of veterans in the federal government. And you were talking about, just what Commissioner Ishimaru pointed to, that some hiring goals and progress made this past year in response to those goals. So I'm looking here, percentage of veterans hired was 28.4 in the first three quarters of fiscal year 2011. I'm wondering, what is our overall percentage, as far as in the federal government as a whole, what percent are disabled veterans? And I guess my second question is, do we have any data that shows up our applicant pool of disabled veterans, what percentage we hire, because that to me is the bigger question.

MR. DECKER: Commissioner Barker, let me tackle it in two parts. On the number of disabled veterans in the government, and I didn't bring the tables with me. We do have that, it's on our website, We've posted for the last several fiscal years data and this would be in the Table 1. It shows the number of veterans in the government, which is about one in four and the number of disabled vets. And I don't have the percentage on that.

COMMISSIONER BARKER: Okay, so we know about 25 percent of the federal workforce is retired veterans, but we don't know what percent --

MR. DECKER: For veterans period, not necessarily retired.

COMMISSIONER BARKER: Veterans, but we don't know what percent are disabled?

MR. DECKER: And about one-third of that would be disabled vet according to the trends that we have.

COMMISSIONER BARKER: Trends but not actual numbers, I guess do we have actual numbers on that?

MR. DECKER: Yes, on the website there are the actual numbers. Those tables are very clear and you'll be able to see the bottom lines.

COMMISSIONER BARKER: So we do know that a third of the veterans hired by the federal government are disabled?

MR. DECKER: Correct, correct.

COMMISSIONER BARKER: And then it's in my second question about the applicant pool.


COMMISSIONER BARKER: Of the number of applicants, you know, disabled applicants that apply for jobs with the federal government, what percent are hired?

MR. DECKER: Now that's a statistic that we do not track easily. I'm sure there's a way to figure out in a round about way, in a general way what that is. But we don't keep, and the number of people that go and apply for a job, number of people that are disabled that apply, and the number that do not get selected, we just don't track that.

COMMISSIONER BARKER: You know, I'm wondering if that isn't something that we should be tracking because it would seem to me that the federal government, it would be the very first place veterans look for job opportunities. So I'd love to know, of those that apply, to look at our numbers versus the general population, looks good. But that can be very deceiving. And it may be that in actuality, if you look at the high number of applicants who are disabled veterans that we ought to be hiring far higher numbers.

MR. DECKER: I think that's a good suggestion. Let me take it back to staff and we'll kick it around and see if we have a better answer.

COMMISSIONER BARKER: Thank you. I'd love to know if you all wouldn't mind getting back to us on that.


COMMISSIONER BARKER: Thank you. I think that's all I have. Thank you.

CHAIR BERRIEN: Okay, thank you. Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you. It's interesting hearing about good will. When you were testifying, Ms. Benewald, I wrote there's a lot of good will. Then I wrote, but good will goes only so far without knowledge and resources. Now I didn't go to metrics initially because I tend to go to knowledge and resources first. I think metrics can be appropriate in certain circumstances. We certainly have them for the federal government. We have them for federal contractors, as Ms. Gordon said. And you might want to say a bit about where the OFCCP is on that. Let me just make two other comments and then I will ask Ms. Gordon to respond to that as well as the other two DOL folks to have a chance to respond to my previous question.

In terms of additional knowledge and resources, I think the other point you made, Ms. Benewald, reflects another culture shift that we need to think about, which is as you noted, military folks are used to getting orders, used to a clear chain of command. That doesn't necessarily sit well within our society that often supports individualized creativity, right, the things that get rewarded in liberal arts colleges.

And I didn't tell you the half of the story about the guy with the rearview mirror. The other part of why he was having trouble is he couldn't figure out the chain of command, and who he was supposed to be giving his ideas too. So he wasn't giving his ideas to anyone. So there is about a mutual respect and learning about different ways of operating.

Okay, I also think in terms of USERRA, I learned a lot about USERRA in a previous life. I think it's a phenomenal law in terms of reinstatement. I assure you the care givers of America would love to have a reinstatement right of a similar kind after they come back from five years of raising their children. I don't think it's the best source for reasonable accommodation in ADA.

And if there's anything that comes out of this, I would hope perhaps some communication, maybe even between the different parts of DOL, to insure that veterans are being informed about their reasonable accommodation rights under ADA, as opposed to what also exists under USERRA for non-discrimination.

So Ms. Gordon, first in terms of OFCCP efforts, and then also the other DOL folks, well, whoever didn't get to respond to my last comment about the one-pager, which to me a resource is about other private groups like American Association of People with Disabilities or the Chamber of Commerce. There are resources that may not sort of be there in the government resources right now.

MS. GORDON: Thank you Commissioner Feldblum. In April we published a Notice of Proposed Rulemaking seeking public comments on the proposal to revise the Section 4212, which outlines the requirement of federal contractors and subcontractors related to protected veterans. And one of the proposed change we see comments on was for the first time, to have federal contractors and subcontractor establish highway benchmark. What that means is they need to express the percentage of total hire who are protected veterans that the contractor will seek to hire for the following year. And the benchmark would be established using the readily available data on veterans. And is not a quota, it simply a management tool that will help contractors determine how well they are doing and take into consideration factors that may not be working in the recruitment process to outreach and how they can better improve those areas where there is room for improvement. So that's a goal, a solid benchmark.

We received 114 comments in response to the NPRM and they are currently being reviewed as part of the process to develop the final rule. And with respect your previous suggestion or recommendation about the resources, I think that's an excellent idea. As you know, OFCCP, we have six original offices and 45 district offices, and that will be sure to drastically increase our commitment to outreach.

So we spend countless hours not only providing compliance assistance to federal contractors but also we should note to the workers, so they know who we are and understand their rights under our laws. So I think having that resource in our hands, that our regional directors and compliance officers can provide the compliance assistance, participate in community outreach, that would be very instrumental.

And I want the partners here today to know that we have district offices all over the U.S., 45 district offices, so we do have to partner with you when you're out in the field, in the community because ultimately the workers is really important to OFCCP, so they know how to file a complaint with us that we will be investigated in a timely manner.

COMMISSIONER FELDBLUM: Oh, actually I think the time is again, up. But I don't know if, yes, let's just leave it at this.

CHAIR BERRIEN: Thank you. And Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you Madam Chair. Ms. Fanning, you wanted to respond to my earlier question about the connection between skills learned in military service and employers wanting skilled workers, and…

MS. FANNING: I did because that's such an important issue. We have veterans who have learned phenomenal skills while they're in the military. For example, a medic who has performed battlefield surgery, but doesn't have the credentials when they leave the military to perhaps be more than an orderly.

And so those kinds of issues need to be addressed. Now we do address those through training in the Voc Rehab program and the post-9/11 GI Bill program, and helping veterans get certifications, whether it's medical or IT, is another good example. There are some areas that DoD already provides licensure and credentials. They train a soldier as a nurse, or a doctor, or a lawyer, of course, they're going to be licensed and credentialed.

But I believe that transition really begins the day of enlistment. So I think a great retention tool for the Department of Defense, and I'm seeing DoD really look at this in a positive way, is starting to plan for that ultimate transition to civilian life at the very beginning, and the training plan for that service member when they receive the training, they receive the requisite credential and ability to get continuing education to maintain it until they leave the military.

COMMISSIONER LIPNIC: Okay, great. And Mr. Parker, I just wanted to ask you a question about, I grew up in a rural area in Pennsylvania. Many, many rural areas in this country have very high percentages of people who serve in the military. So I'm wondering, in terms of the vets at the Labor Department, what kind of outreach you have to rural areas? And I'm particularly concerned that if someone comes from a rural area, they serve in the military, they're injured and they go back there; then the real difficulty for them then finding employment.

MR. PARKER: Thank you Commissioner for the question. We do have a program which we call the Rural Outreach Program in which we go out to the rural areas of the country. We focus in on veterans out in those areas. We focus in on job assistance employment for them, realizing that there's not a lot of jobs out in the rural areas. We do talk to them about jobs that are available maybe in other areas. But one of the main problems seems to be is that you grew up in an area, you went in the military, you came out after four or five years, or whatever and you have a propensity to want to go back home. And once you go back home it's hard to kind of break out of that. But we do have personnel out in the field and just like OFCCP; we're located in 50 states to include Puerto Rico, the Virgin Islands, and we're in nine countries around the world with our Transition Assistance Program. So we do reach out to the rural areas to try to help the veterans find employment.

COMMISSIONER LIPNIC: Great. And one thing and this is for Ms. Gordon, that might be helpful and I don't know to the extent that you do this; but, very often defense contractors have facilities in rural areas, and production facilities, and so to the extent that OFCCP can coordinate that with your outreach events, I think that --

MR. PARKER: Right. We do collaborate with OFCCP and other agencies within the local areas to make sure that we are basically talking the same thing to the veterans. We also reach out to the local VSOs in the areas, find out what they have going on and assist them in whatever ways that we can to help these veterans find employment.

COMMISSIONER LIPNIC: Ms. Gordon, did you want to comment at all?

MS. GORDON: I think Mr. Parker answered the question because we do collaborate. We also work with our partners like ODEP, Office of Disability Employment Policy and ETA. We partner with rural, local participants from VETS, ETA, in the field so yes, we do join outreach activities. And we focus, we have increased our outreach. We focus a lot on small, new contractors with the – well, compliance activities.

COMMISSIONER LIPNIC: Okay, great. Thank you Madam Chair. Thank you all. Thanks to all of our witnesses.

CHAIR BERRIEN: Thank you. And I'd like to ask a follow-up on something. Ms. Fanning mentioned how your work really bridges the gap between military and civilian work requirements in some ways. And Ms. Ansley, you talked about the gap between advocates for people with disabilities and advocates for veterans.

I'd be interested in your views about what we can do to help bridge those gaps, but particularly also, what we can do to make sure that the gap that appears to exist between the lawyers and service providers who focus on things like the VA Disability Program and USERRA, may or may not be in communication with lawyers and service providers who focus on the ADA. So if you can give us your thoughts about how we can help bridge those gaps?

MS. ANSLEY: Thank you for the question. In addition to being a lawyer, I'm also a social worker. And one thing they teach us is cultural competency and that is something that's really key, I think, when you're trying to do outreach, is the terminology. I work in the disability world and the veteran world and I can tell you the terminology, to speak about the very same things is different. And the way that you people understand it is different.

So I think that we have to be very cognizant of when we're trying to reach out to people to educate them, that we're talking to them in ways that they understand. Because we're trying to communicate that the ADA is available, and these resources are available, and accommodations, and so we need to make sure that we're, whatever the terminology is that works for that particular community, is how we need to be communicating that. So if we have people who are working with veterans and getting disability benefits, or with employment, that they are aware of the ADA. We like to see the veteran as a holistic person and so the VA provides services, but you also as a person with a disability have other protections that come in, and in some cases they may be of different thresholds. For instance, with OFCCP they're different contract thresholds depending on which authority you're talking about. So we need to look holistically at people and be able to approach them specifically from where they're at. Because otherwise, the barriers that you will face; they are many and varied, and where you have to go to find the assistance to work through those, you know, isn't necessarily just at VA. And if you're not familiar with the outside world, that could be frustrating to you. And so we want to make sure that we work collaboratively. And I think part of that is, we have to be able to understand what each other is saying and to respect each other. And I think that goes back to the pity comment, I sent that to my bosses in New York and said there's a book on disability by Joe Shapiro called, No Pity. Wow, this sounds really familiar. So I think that, looking at what the different communities want, but just figuring out how to speak to each other, there's a lot of power that could be had and really could address a lot of the issues we talk about.

CHAIR BERRIEN: Would you suggest that we do more locally and nationally of the kind of thing we're doing here, which is to get the people in the room who may ordinarily be dealing with this from separate spaces together to talk about the issues?

MS. ANSLEY: I think that that's a great way to begin that conversation, is to help people who can start to see the various ways that you can work together. And to look at what other people are already doing on the ground. Looking back at the disability movement, I mean veterans have been involved in that. My organization is a veterans service organization and they've done amazing things, and are still doing amazing things to try to make areas accessible with transportation and other issues for disabled veterans and that's reached out to all veterans and all people with disabilities.

So I think that bringing people together who don't necessarily normally have a reason to get together, and breaking down those barriers; we have to break down our barriers if we're going to break down societal barriers for people with disabilities and disabled veterans.

CHAIR BERRIEN: Thank you. And I promised earlier that we would come back to the Department of Labor if there are any specifics that you would like to share, either Mr. Parker or Ms. Gordon concerning our updated guide and both content and dissemination, please, feel free to weigh in.

MR. PARKER: Well, I'll go ahead. In agreeance with my other colleagues up here, especially when we talked about campuses, focusing in on campuses; there are student organizations on campuses that are focused clearly on veterans. And there are professors on these campuses that are veterans that assist with these organizations; so they provide assistance and guidance to these student veterans.

We also participate, as part of our outreach on college campuses with their job fairs that they have, we go in and we talk to the veterans about employment. We talk to them about, if they graduate, what it is that they want to do. We provide case management to them. So we just let them know that somebody is available to talk to them at any time about any of these problems that they may have.

CHAIR BERRIEN: Greg, I want to make sure that we get a chance to hear from Ms. Gordon and we just got our red light. So Ms. Gordon was there anything you'd like to --

MS. GORDON: Okay. I think for the guide it would be important to include information on the rights of veterans under the various civil rights laws, so they know where to go for assistance. And information about OFCCP and other agencies like EEOC, DOJ, because I think sometimes it is very confusing as individuals to know exactly where and who to file a complaint with. So I think it would be an important issue that we will provide them more resources so they can better understand their rights, because ultimately they will be applying for jobs. And they need to know how to file a complaint, and where to go, the right agency. So I think that's all if I understand your question about the guide that you are working on.

CHAIR BERRIEN: Yes, thank you. And also in your earlier answer about the network of offices that OFCCP has and its outreach efforts, of course, that closely parallels our national scope. And I think it helped that there could be opportunities for us to partner in the future with other government and private sector agencies represented here, and others who may not be in the room but of course, have a great deal of interest in these issues as well.

With that, we will move to the closing of our meeting. I want to say on behalf of the entire Commission, and just want to thank you all for being here. And we will begin with closing remarks from Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Thank you Madam Chair. I want to thank the panel. This was very, very helpful and appreciate your contributions. As you talk about holistic approaches, I'm sitting here thinking well, maybe we should combine the Department of Veterans Affairs with the Department of Defense. Well, because part of this is a continuum and how do you make sure that people in the armed services get at an earlier stage, an understanding that when you go back into civilian life, things aren't going to be exactly the same. And you can do that at the VA after they're done with their military service, but does it make sense to do it earlier. And I'm sure there is talk going on of how do you integrate this better? I'm sure this is nothing new to the people sitting on the panel. But it is such a wealth of talent, and skills, and getting over the stereotypes, very similar to the disability issues that we've talked about now for many years, of how do you get this done so people can go to the private sector and less translation would have to go on, that people could step right in and do the job. And I'm glad those conversations are going on. This is very helpful for us to figure out how our role plays in at the EEOC using either a disability angle, or perhaps a race angle, perhaps a gender angle, to deal with the problems faced by veterans when they come out, when they're looking for employment, whether it's with the government or if it's with the private sector.

A huge issue, but yet if you look in the past and if you look when people have come back from other wars and other conflicts, how seemingly looking back in history, people were more easily integrated into both the public institutions and the private institutions. And, you know, why is there a disconnect seemingly, right now and I think that's a question for another day. But again, Madam Chair thank you for holding the hearing, I thought it was very helpful.

CHAIR BERRIEN: Thank you Commissioner. Commissioner Barker?

COMMISSIONER BARKER: I want to thank the panel too for all of your expertise that you've lent us today. And I think it's important that while as a Commission we focus on the right to the disabled under the ADA, that we also particularly focus on the fact that disabled veterans are disabled because of their service to all of us, which is an entirely different population and deserves our special attention. So thank you again.

CHAIR BERRIEN: Thank you. Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you Madam Chair. Thank you very much to all of you here. I hope that the conversations continue among all of you, not just with us. Those who know me, know that I'm also a very optimistic person. I'm not only a bipartisan gal, I'm an optimistic gal. Sometimes I think those qualities may be related to each other. So I just want to leave you with a note of optimism on the issue of crossing cultures in a sense, making connections. I started my legal advocacy work 23, 24 years ago, 1988, working for the ACLU AIDS Project. And I became, through that, the main lawyer working with the disability community on the ADA.

I will tell you that in 1988, people with AIDS did not see themselves as people with disabilities. And people with disabilities did not see a lot of commonality with people with AIDS. And there was a significant work in terms of talking about the commonalities and I will never forget, towards the end of the ADA when we were dealing with an amendment that had passed over on the House side and we were trying to get rid of on the Senate side; the Chapman Amendment, that would've excluded people with AIDS from a number of jobs. This image of like six people from the Paralyzed Veterans of America rolling down the halls of the Senate with the one pager saying, do not exclude people with AIDS from the ADA. So it is about making the commitment to having the conversations together and understanding that people come from different places with, as I said in the beginning, a unique set of talents from the military, but also a unique set of challenges. And if we don't educate ourselves to understand about those challenges, we're never going to help those folks be able to use their talents with the employers who need them. So thank you.

CHAIR BERRIEN: Thank you. Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you Madam Chair. Thank you to all of our witnesses for offering your expertise today. And I would just add that going forward for us at the Commission, I think in terms of our work under the ADA, it's certainly important that people know about their rights, but I am a big believer in that we want to avoid lawsuits. The more that we can do to promote reasonable accommodations and help people, both on the employee side who need the accommodation and the employer side to understand and bridge that gap; then the more we will do to, in particular help veterans with disabilities. So thank you all for being with us and thank you Madam Chair for this hearing.

CHAIR BERRIEN: Thank you. And like my colleague, Commissioner Lipnic, I am also the daughter of a World War II veteran and indeed, one who was part of the Tuskegee Airmen. And the opportunity to have this meeting today and for us to be able to hear from all of you about the resources that are available, about the tremendous service that you're providing across such a wide range of parts in the public and private sector and about the really concerted effort and good hard work that's going on to address what has emerged as a significant challenge for the nation; is both inspiring and I feel it honors that service and the service of all of the nation's veterans. So I want to thank you all for your participation in this meeting.

I think the key thing that I will take away from this meeting is something actually that Ms. Fanning said; that we may have come through different doors but we're in the same room. And I think that really is such a wonderful metaphor for what has happened today, that people have come from different perspectives. But by presenting and sharing the information that you've been able to share with us today; I think you are enabling us to do our work better as an agency, to serve the public more effectively, and to particularly serve this part of the public more effectively.

And I think the most important challenge and opportunity that this creates for all of us and for this Commission is for today to be a beginning and not an end to that dialogue. I know that in every conversation that I had with Sharon Alexander leading up to this meeting; as the meeting approached she kept saying and I've already got this list of follow-up. I've got this list of follow-up. And I am quite convinced that this will not be the last time you will hear from us or that you will hear from the Commission on this issue. We thank you for your generous participation today and we will be turning to you and to others in the future. So thank you very much. And I do want to briefly acknowledge Kendra Duckworth, who is a part of the EEOC staff, who oversees all of our reasonable accommodation within the Agency and who was a very, very helpful behind the scenes resource to us as we put this meeting together as well.

COMMISSIONER ISHIMARU: She also used to be at the Job Accommodation Network too and that's where we stole her from and we were delighted to do so.

CHAIR BERRIEN: We didn't want to remind them. Thank you all very much. If there's a motion?

COMMISSIONER ISHIMARU: So moved to adjourn.


CHAIR BERRIEN: All in favor?

Chorus of "Ayes"

CHAIR: We're adjourned. Thank you all.

(Whereupon, the foregoing matter went off the record at 12:34 p.m.)