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Meeting of February 15, 2012 - Unlawful Discrimination Against Pregnant Workers and Workers with Caregiving Responsibilities - Transcript


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


P. DAVID LOPEZ, General Counsel
BERNADETTE B. WILSON, Acting Executive Officer

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



DR. STEPHEN BENARD, Indiana University
SHARON TERMAN, The Legal Aid Society Employment Law Center
MARYANN PARKER, Service Employees International Union
LYNN FRISS FEINBERG, AARP Public Policy Institute
DEANE ILUKOWICZ, Hypertherm, Inc.


MELVINA FORD, U.S. Department of Labor
EMILY MARTIN, National Women's Law Center


JUDITH LICHTMAN, National Partnership for Women and Families
JOAN WILLIAMS, Center for WorkLife Law



  1. Announcement of Notation Votes
  2. Unlawful Discrimination Against Pregnant Workers and Workers with Caregiving responsibilities

Panel 1: Understanding Pregnancy and Caregiver Discrimination in Today's Workplace

Panel 2: Statutory Framework and Enforcement Efforts

Panel 3: The Way Forward: Implications for the Future

  1. Motion to Adjourn


(9:35 a.m.)

CHAIR BERRIEN: Good morning, everyone. The EEOC meeting will now come to order. I want to thank everyone for joining us today. In accordance with the Sunshine Act, today's meeting is open to public observation of the Commission's deliberations and voting, and at this time I'm going to ask Bernadette Wilson to announce any notation votes that have taken place since the last Commission meeting. Ms. Wilson?

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

(No response.)

MS. WILSON: Okay. Good morning again, 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 re-entering as quietly as possible. Also, please take this opportunity to turn your cell phones off or to vibrate mode.

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

During the period November 15th, 2011, through February 10th, 2012, the Commission acted on twenty two (22) items by notation vote:

Approved Litigation on one (1) case;

Approved seven (7) Subpoena Determinations;

Approved a Federal Sector Decision;

Approved Industrial Psychology Services to Support a Litigation Case;

Approved the Full Service Facility to Host the 2012 through 2014 EXCEL Conferences;

Approved FY 2012 Information Technology Acquisitions;

Approved a Non-Competitive Labor Hour Contract for Arbiter Services in the Union's Fair Labor Standards Act Grievance against the Commission;

Approved the Draft Final Rule Amending Regulations Under the Genetic Information Nondiscrimination Act of 2008, or GINA, and the Draft Final Rule Implementing Revisions to 29 C.F.R. Part 1614;

Approved Resolutions Honoring Michael C. Fetzer; Alex Durbin; Jeffrey A. Smith; Irene L. Hill; V. Denise Martin; and Stephen Llewellyn on their retirement; and,

Approved the Closing of a Portion of the Commission Meeting that will be held on February 22nd, 2012.

Madam Chair?

CHAIR BERRIEN: Thank you, Ms. Wilson. And I'd also like to acknowledge that this is our first meeting since Ms. Wilson's appointment as Acting Executive Officer, so I'd like to congratulate you and welcome you to your new position. And you're certainly familiar to us all --

MS. WILSON: Thank you.

CHAIR BERRIEN: -- but in this new role, we welcome you.

MS. WILSON: Thank you.

CHAIR BERRIEN: I'm very pleased that we are meeting today to discuss unlawful discrimination against pregnant workers and workers with caregiving responsibilities. The Commission held meetings on caregiver discrimination in both 2007 and 2009.

The Commission records indicate that the Commission's last meeting devoted to pregnancy discrimination issues was in 1983, so this opportunity to take a fresh look at pregnancy discrimination issues, together with caregiver discrimination, is especially timely.

As we meet today, I'm reminded that the first Title VII case decided by the Supreme Court, Phillips v. Martin Marietta, challenged an employer's policy of refusing to hire mothers, but not fathers, of preschool-aged children, because mothers were presumed to be unreliable employees due to their caregiving responsibilities.

One of my mentors, Bill Robinson, was an attorney with the NAACP Legal Defense Fund when he argued the case in the Supreme Court and persuaded the Court that Martin Marietta's policy violated Title VII's prohibition against sex discrimination. When Congress transferred litigation authority in private-sector cases from the Department of Justice to the EEOC, Bill Robinson became Associate General Counsel of the EEOC, so our connection to the issues we are discussing today is a strong and a long-standing one.

As I prepared for today's meeting, I also had a moment of personal reflection and thought about my own experience growing up as a child of two parents who worked full-time outside the home. My mother worked the midnight to 8:00 a.m. shift at Freedman's Hospital when I started school, and for several years she miraculously managed to make it from the hospital to our house in time to braid my hair and send me out the door in time for an 8:30 school bell. I can't imagine how she did it. I was carrying a lunch that my father packed for us, and my brother and I were dropped off on his way to work. Again, miraculously, he made it downtown Washington in time for a work day that started at 9:00 a.m.

My mother slept, or tried to, while we were in school, and arrived to pick us up promptly when school dismissed at 2:30. From there, she would often be shuttling up to music lessons, rehearsals for plays and band concerts, practice sessions and games for sports teams, scout troop meetings, and on and on. And of course, she supervised homework and managed, most nights, to make a home-cooked meal.

They made it look easy, but as an adult I recognize how incredibly difficult it must have been -- in fact, unimaginably difficult it must have been for them to juggle demanding careers in the healthcare profession at the same time as they managed, somehow, to always be present and accounted for and fully engaged in a full roster of family activities and responsibilities. It's even more remarkable when I consider that we had no relatives in the city, and, with the exception of a few years when I was an infant and my brother had not yet started school, there was no babysitter.

Like my parents, many people today struggle to balance the demands of work and caregiving. I am proud of the work the Commission is doing to ensure that whatever other challenges workers with caregiving responsibilities may face -- and the schedule that I just outlined of my parents is typical of what many face -- unlawful discrimination should not be among their challenges.

I also want, as we open the meeting, to acknowledge the leadership of Commissioner Stuart Ishimaru in developing the agenda for today's meeting, and in the work of the Commission, particularly concerning caregiving issues. I would certainly be remiss if I didn't acknowledge the tremendous work that his special assistant, Antoinette Eates, and my special assistant, Sharon Alexander, have done in preparing for and organizing today's meeting.

And most of all, I want to thank and acknowledge all of the experts who have agreed to take time out of your schedules today to join us, both our internal experts and the many who have traveled, in some instances great distances, to be here with us today. I want to thank you all on behalf of the Commission.

Today's meeting will consist of three panels. The first panel will begin with a review of social science on the issue of workplace discrimination based on pregnancy and/or status as a parent, and then proceed with a discussion of forms of discrimination experienced by pregnant workers and workers with caregiving responsibilities. Panel 1 will conclude with a discussion of workplace policies that help prevent unlawful discrimination against pregnant workers and workers with caregiving responsibilities from the perspective of a representative of organized labor, and from the perspective of an employer who has excelled in helping employees balance the competing demands of work and family.

Panel 2 will consist of a review of relevant federal law and policy, particularly Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and the Affordable Care Act provisions on break time for nursing mothers. Panel 2 will also include an overview of litigation under these laws, both from EEOC's perspective and the perspective of private litigants.

Finally, the third panel will examine the way forward, considering what more the EEOC and other agencies can do to help eradicate unlawful discrimination against pregnant workers and caregivers in the workplace. With that, I'd like to yield now to my colleague, Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Well, thank you, Madam Chair. And thank you for holding the meeting today. I'm delighted that we have so many experts here to give us testimony today on important issues that, for some, we haven't dealt with in many years. As you noted, this is the first time in many years that we've done a meeting on pregnancy discrimination, which I think is a long-overdue issue that we should be dealing with. And it also represents a much-needed follow-up to the 2007 and 2009 meetings we've held on discrimination faced by caregivers in the workplace, and best practices for workplace flexibility.

You would think, and certainly I did, that 35 years after the Pregnancy Discrimination Act we wouldn't need to be having a meeting on pregnancy discrimination. The PDA is incredibly clear in affirming that women should not be denied job opportunities simply because they are or might become pregnant. But I remember, I was sitting in a car on a trip with Professor Reva Siegel from Yale, and she was asking what we were doing at the Commission. And we were talking about the caregiver guidance that we came up with, and Reva said -- she said "You know, you guys really should be doing something on the PDA."

And I thought, "Come on. You know, this is not an issue anymore." But in fact, this is. And as we'll hear during the course of the day, there are new issues and current issues on pregnancy that we should be dealing with, and I'm delighted that we're getting to this, although a number of years after Reva and I had this conversation.

So you know, I've been stunned, frankly, by the number of egregious and blatant cases that we've seen and we've heard about over the years. It's happened far too many times during my tenure at the Commission. Just last week, I saw an audio tape of an ABC News broadcast which showed an employee meeting with their senior HR manager where she was basically told, after she told them that she was pregnant, that she needed to resign and that she would not be able to take any leave for her pregnancy or childbirth because she was not yet covered by the Family and Medical Leave Act.

And you know, this, frankly, in this day and age, to me, is shocking, that we would still see things like this. And I look forward, during the course of the day, to hearing more about how we can do our job better. We'll also hear during the course of the day what happens in the workplace once women and men return to work after their children are born. We'll hear about the continuum of issues that start with pregnancy and then confront caregivers of children, elderly adults, and people with disabilities. Most working caregivers are still women, and sex discrimination can thus occur when inflexible policies are applied to them. In addition, as we will hear, discrimination can occur when stereotypes about the commitment of these workers, both men and women, result in adverse employment actions.

I want to end by noting that, in addition to educating the public about these issues and sharing some best practices that might help employers avoid discrimination; one of the main reasons we have these meetings and we issue policy guidance in these areas is that so our own employees at EEOC will, in the midst of the press of processing thousands of charges, have the tools and the framework to assess and investigate these charges, and have an impact beyond the fact patterns presented. This is my hope of how we can turn the tide on discrimination against pregnant women and caregivers going forward.

So I look forward to the testimony today, and I welcome all of you for coming, and thank you for coming. The testimony submitted has been excellent, and even before the hearing I learned an awful lot. So thank you, Madam Chair.

CHAIR BERRIEN: Thank you, Commissioner. Commissioner Barker?

COMMISSIONER BARKER: Thank you Madam Chairman, and thank you for pulling together this meeting. I want to thank in advance all the panelists, the ones who are seated and the ones who will take their places shortly, for taking the time and putting the effort into composing your testimony, and being willing to come forward today and share your expertise with us. We really appreciate that.

This is a very difficult subject, and it's been a subject that's been developing over a number of years, and it certainly involves rights that are inherent for females. You know, I was a single parent. I'm the only one of the Commissioners, I think it's fair to say, who was a single parent. And I didn't have family support, so I raised my child without any support. And so I know firsthand some of the issues that that brings forward.

So we have this host of laws under Title VII, Family and Medical Leave Act -- which of course we don't have jurisdiction over -- and the ADA, that in some ways, to a certain extent, protect women and men who are either pregnant, have child-raising responsibilities, or have other caregiving responsibilities. And then we also have a host of things that the law does not cover that we wish the law would cover, and hope that our economy could move toward.

And we look at companies like the ones who will be represented today, but also there is so much about Google, for example, and how in so many ways it's a model employer for women, with all of their benefits to young women in particular, young couples who have small children. And these are our aspirational goals for companies. We wish that every company could be that way.

At the same time, what I'm looking forward to hearing from the panelists is what the real-life situation is today, and what are some of the real challenges that we face in light of the current depressed economy. Because while we have such a high unemployment and there are so many women, young women of child-bearing age, who would just give anything to have a job, to have an income coming in, and so many young men who have young children with child responsibilities, who are in the same situation. And people my age, who have parent caregiving responsibilities; how the current depressed economy fits into this whole package that we aspire to. So I look forward to that dialogue with all of you today. Thank you again.

CHAIR BERRIEN: Thank you, Commissioner Barker. Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you. Thank you, Madam Chair, for holding this hearing. Thank you, Commissioner Ishimaru, for pushing for it, for working on it. And again, the staffs, Antoinette and Sharon, that did incredible work.

I started looking at this issue probably most intensively about seven years ago, when I started Workplace Flexibility 2010 in 2003. And my goal at that time was simply to bring the issue of the intersection between work and family life, whether it was caregiving or anything else, into the public policy debate in a way that was even broader than the FMLA debate which had started off so much of this incredible work.

I guess I have to say, Commissioner Ishimaru, that I was appalled but probably not shocked by some of the stories that I read. Because, perhaps because of the depressed economy or anything else, employers like to have workers that, as Joan Williams said so many years ago, are like the ideal worker, they don't bring any problems into the workplace. That's just sort of how they want to be.

Now, one thing that's going to be very useful and interesting about this hearing and meeting and testimony is that there are a number of laws right now -- right now -- that do not allow employers to be doing what they're doing. And those are laws like the PDA. Those are laws like the ADA. And in particular, those are the intersection of the ADA and the PDA that in fact provide protection for a number of women and men who are experiencing some of this discrimination.

But the key thing is that words on paper are just words on paper. And our job, as an agency, is to make sure that we are enforcing the laws. And that starts with education. That starts with letting people know what the law says, and this meeting is an incredibly important first step in that regard. It means putting out clear guidance, in writing, about what the law says. It means educating our investigators, so they know when charges come in that a law has been violated. And finally, if need be, it means going to court.

So I'm very, very happy that we are starting in what has already been a very long effort on this -- and we have some of the people testifying today who were at the beginning of that effort, here, as well as people who came into this more recently. I want to acknowledge the presence of Liz Watson in this room. Liz Watson, at Workplace Flexibility 2010, spent two years with Professor Jennifer Swanberg working on an incredible report about how the lack of workplace flexibility affects low-wage workers. And I think as we will discover, the presence of laws like PDA and ADA are most important for low-wage workers who are often working part-time, and have not the protections of the FMLA.

So I thank both the initial leaders of this movement, like Judy Lichtman, whom I met when I came to Washington 30 years ago as a young babe, as well as Liz Watson, who's the rising generation of those who are going to work on this issue. Thank you so much.

CHAIR BERRIEN: Thank you, Commissioner. Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you Madam Chair. Good morning, everyone. I also want to thank, especially, Commissioner Ishimaru and his staff, and the Chair's staff, for organizing this Commission meeting today, and in particular for the work -- and acknowledge the work that Commissioner Ishimaru has done on this issue over the years.

I'm interested in Commissioner Ishimaru's comment about the continuum of issues. And it certainly is a continuum, and we have all, as Commissioner Barker said, experienced it probably at some point in our lives, in different ways, whether it's childcare or the elder care issue. I also want to acknowledge, as Commissioner Feldblum did, many of our witnesses who are here today. There are many people who I have followed your work over the years, and read your work, and it has certainly influenced my thinking on this topic as I have sat in two policymaking positions, both at the Labor Department and here at the Commission.

I do think, as Commissioner Barker said, and I want to echo those comments; there are so many pressures on the American workforce today, and there have been for many years, particularly in the terrible recession that we've been struggling through, that I'm not sure any of us have quite come to grips with. And particularly for people who have caregiving responsibilities, whether it is on the front end, if you have children, or on the back end, if you have parents. And if you have parents in particular, those issues can be very difficult, particularly if you're dealing with people at some distance.

I have been interested in this issue for many years, not just from my experience as Assistant Secretary at the Labor Department when I was administering the FMLA -- although let me just say, that started in 2002 and I think it was in 2003 that, before she was Commissioner, then-Professor Feldblum walked into my office and God knows I could not stop thinking about it after that.


COMMISSIONER LIPNIC: But at that time I was administering the FMLA, the thing that struck me was that the workforce is the caregiving workforce, and we haven't acknowledged that. We hadn't really acknowledged that for a long time, so credit to many people here who have created that and brought that to our conscience.

I look forward to the testimony of our witnesses today. Again, I thank the Chair and Commissioner Ishimaru for their leadership in putting this Commission meeting together. Thanks very much.

CHAIR BERRIEN: Thank you all for your opening comments. And I'd like to just say again how grateful we are that such a wonderful panel of experts is here with us today.

A moment on ground rules. Each panelist will have five minutes to make opening statements. Your written statements, your full written statements, will be available not only to the Commission, but also to the public. They will be available on the EEOC's website, which is And we'll ask you, please, to honor our timing lights. When the yellow warning light comes on, that means you have one minute left. And the red light will signal that the time has expired. So with that, I will introduce the members of our first panel.

Dr. Stephen Benard is going to be appearing today by videoteleconference from the EEOC's Indianapolis District Office. He is a Professor of Sociology at Indiana University. Sharon Terman is a Senior Staff Attorney with the Legal Aid Society's Employment Law Center. Maryann Parker is Associate General Counsel of the Service Employees International Union. Lynn Friss Feinberg is Senior Strategic Policy Advisor at the AARP Public Policy Institute. And finally, Deane Ilukowicz is Vice President for Human Resources from Hypertherm, Incorporated, in New Hampshire. And we will hear from all of our panelists first, and then we will have a question and answer period. We'll start with Dr. Benard.

DR. BENARD: Thank you, Madam Chair. Thank you, Commissioners. And thank you to Sharon and Antoinette for all the work you've done putting the panel together.

Before I talk about the work I've done with my collaborators, I'd like to just briefly mention some background information on overall labor market outcomes for mothers and other kinds of workers. There has been a lot of work by both economists and also sociologists looking at large-scale, nationally representative data on wages. And what this work finds is that on average, mothers tend to earn less than other kinds of workers.

One study, for example, finds that mothers earn about five percent less per child than other workers. Now, the important thing to know about that is after --

COMMISSIONER FELDBLUM: Can you make sure that you're speaking into the microphone? Just make sure you're speaking into the microphone. It's just a little low.

DR. BENARD: All right. Let me move it a little bit. Maybe -- okay, if I speak like this, is that better?

CHAIR BERRIEN: As loud as you can, or if we can get an adjustment on the sound, that would be helpful. Thank you.

DR. BENARD: Okay. I can try speaking louder. Is that better?

CHAIR BERRIEN: That's better. Thank you.

DR. BENARD: Okay. So just to pick up where I left off, we see this five percent wage gap between mothers and other kinds of workers per child. And the important thing to know about that wage gap is that it's after accounting for all the usual suspects that affect wages. And so that includes accounting for the fact that mothers and other workers might differ in experience, they might differ on whether they work full or part time. So even after accounting for those factors, we see a wage gap.

And so that raises the question, why does that wage gap exist? Is it because mothers are less productive than other workers in ways we haven't accounted for? Or is it because mothers may experience discrimination in the workplace? And that is where my colleagues and I picked up this line of research.

And so what we do is conduct experiments, and we use experiments because they allow us to see how individuals would react to individuals who don't differ at all in their work qualifications, but do differ on demographic characteristics, such as whether they're a man or a woman, and whether they're a parent or a non-parent. And we've conducted two kinds of studies. We've conducted laboratory experiments, which allow for many different kinds of measures of discrimination. And we also conducted a field experiment, which is more limited in the ways we can measure discrimination, but does take place in an actual labor market.

And so in the laboratory experiment, we asked participants to come into our lab and evaluate resumes that are ostensibly for a mid-level marketing position. And we -- these resumes are constructed by us, and so we can make sure they're of equivalent quality. So the resumes don't differ at all on things like experience, education, or any other work characteristics. What the resumes do differ on is three factors. They differed on whether the participants were men or women, whether they were parents or non-parents, and also race, whether they were African-American or white.

We asked participants to evaluate these resumes on a wide range of factors, and what we found was that mothers were consistently penalized across all of these measures. And so, for example, for the same resume, if the candidate was presented as a mother; they tended to be viewed as less competent, where competence includes a wide range of variables including intelligence. They were viewed as less committed to work. They were held to stricter standards, and also viewed as less hireable, less promotable, less worthy of management training, and deserving lower starting salaries.

For fathers versus men without children, it was more mixed, but on average fathers were rated more highly than men without children. So fathers actually received a bonus.

For the field experiment, we took resumes that were similar to those we used in a laboratory experiment, but we applied for real jobs in a large U.S. city, similar to the jobs we used in the laboratory experiment. And what we found, when we measured how often those resumes were called back for an interview, was that mothers were called back for an interview about half as often as women without children. There was also a tendency for fathers to be called back more often than men without children. That was not a statistically significant tendency.

So in summary, we do find consistent disadvantages for women across several different kinds of studies. We tend to find advantages for men, but that doesn't mean that men are always advantaged when they're fathers. There is other evidence that suggests that when fathers engage in caregiving activities -- so, for example, if they request leave to care for an elderly parent or a child -- they may be penalized for taking that leave.

Now, in terms of what we can do, research is exploring several remedies for this. Some research on gender discrimination suggests that increasing accountability can reduce discrimination. There is also a lot of interest right now in flexible work practices, and in some ways those are promising, but there's also a number of studies -- and I think Joan Williams will mention some of these later -- suggesting that individuals may actually experience discrimination for using flexible work practices.

So I'll just stop there, but I'm happy to take your questions. Thank you very much.

CHAIR BERRIEN: Thank you Doctor. Ms. Terman?

MS. TERMAN: Thank you. Good morning. I'm pleased to be here to speak about this important issue. At the Legal Aid Society Employment Law Center, in addition to representing clients in litigation, we also run a work and family helpline. And we hear from low-wage workers every day who face problems at work due to pregnancy, caring for a new child, or a family medical crisis. Most of our clients live paycheck-to-paycheck. Many are single parents who are juggling multiple caregiving obligations in inflexible jobs. When their rights are denied, they face devastating consequences: eviction and homelessness, and consequences to their health and well-being.

Today I'd like to highlight a few trends that we've seen in our experience assisting low-wage workers. First, although pregnancy discrimination has been illegal for decades, it persists and is often shockingly blatant. We have heard from many women who were fired immediately upon announcing their pregnancy, and whose employers expressly told them that pregnancy was the reason for their discharge.

One client told the owner of her company that she was pregnant about when she began the second trimester, and he responded, "That's not going to work," and fired her the next day. She was not asking for any leave or any accommodation, but he said, "We're a small company, and we can't afford to cover you when you're gone." Harassment of low-wage pregnant women is also quite common, and many women of color experience discrimination and harassment based not only on their pregnancy, but on race and national origin as well.

Second, an increasingly common pattern of discrimination against low-wage pregnant workers that we've seen is that, upon learning of a woman's pregnancy, the employer will force her to take an unpaid leave for the rest of her pregnancy. The forced leave is not based on medical need, but rather on the employer's unfounded assumption about the woman's capacity to do her job, or about fears regarding safety.

When one of our clients, a Latina janitor, told her boss she was pregnant, he said she needed to go on leave right away and find a replacement. Often this forced leave occurs early on in pregnancy, when the woman is perfectly able and very much wants and needs to keep working. Then, later, when the woman really needs the leave, she's already exhausted all allowable time off, and is fired.

Third, low-wage pregnant women are routinely denied modest workplace accommodations that would allow then to keep working while maintaining healthy pregnancies. Healthcare providers often recommend workplace accommodations for a woman's health and a safe pregnancy. Common examples include sitting on a stool rather than standing on your feet all day, taking frequent bathroom breaks, carrying a water bottle or snacking frequently during your shift, being relieved from occasionally lifting heavy objects, or avoiding exposure to toxic fumes.

These are often very minimal adjustments that can and should be made. They're by definition, time-limited, and are cost-effective for employers because they allow women to remain productive employees throughout their pregnancy. Yet these requests are often denied, and women are forced either to disregard their doctor's orders, or they're forced out on unpaid leave or fired.

One client, a warehouse worker, asked her employer not to be exposed to toxic fumes while she was pregnant, and gave her employer a doctor's note. Her boss said no, and asked "You can pump your own gas, so why can't you fill a propane tank?" Another client who worked as a driver for a medical supplies company asked for assistance lifting heavy objects, and her manager refused, forced her to take an unpaid leave. She exhausted all her leave two days before she gave birth and was fired.

Finally, low-wage workers are often denied medically necessary leaves of absence for pregnancy or childbirth, or are denied reinstatement upon their return. Some amount of time off is medically necessary for all women who deliver a child. Time off also may be needed for prenatal care and before childbirth. And of course, women with pregnancy- or childbirth-related disabilities, such as postpartum depression or gestational diabetes, also may need extended time off. Workers may be entitled to such leave under existing federal and state laws, yet we hear from countless low-wage workers who are denied essential leave, who have their leave cut short, or who are denied reinstatement upon their return.

A pregnant janitor, one of our clients, told her boss that her doctor was running late at a prenatal care appointment, and he fired her by text message, saying, "You need to give more notice if you're going to miss work." Another janitor was told that she could not come back to work after maternity leave, because her boss said, "Women don't work as well after having a baby."

Low-wage workers are less likely to meet the stringent requirements of the Family and Medical Leave Act, and the vast majority of low-wage workers lack access to even a single paid sick day. As a result, all too often they find their jobs threatened when they need time off or other accommodations to care for themselves and their families.

In conclusion, in light of these trends, we urge the EEOC to provide clear guidance for employers and employees about the protections afforded under the Pregnancy Discrimination Act and the Americans with Disabilities Act. My written statement outlines several points that we believe such guidance should include, and discusses California's experience enforcing broader protections for pregnant women and caregivers. Thank you for you time and inviting me to participate in today's meeting.

CHAIR BERRIEN: Thanks Ms. Terman. Ms. Parker?

MS. PARKER: Good morning, Chair Berrien, Commissioners, and Counsel. I also thank you for the opportunity to participate in today's meeting. I work at the Service Employees International Union, which is the fastest-growing private sector union in the United States. We represent 2.2 million members in healthcare, property services, and public services. Many of our members are low-wage hourly workers, and the majority are women.

My remarks today will sketch out the challenges faced by low-wage workers, and suggest that these workers, acting through their unions, can and should partner to implement best practices at American workplaces with regard to family responsibility accommodation.

As you know, labor unions played a major role in the passage of the PDA. But perhaps the most important role that unions can play is in implementation, and in the work of converting the letter of the law into employment practices on the job. For example, after the enactment of the PDA, unions bargained contracts, changed shop floor practices, pursued grievances, and conducted worksite education that set a pattern that made positive changes across the economy. And for some workers, unions delivered the American dream, and women had the ability to take and to keep jobs, real family-friendly jobs with good benefits and healthcare and paid leave and accommodations for those employees that need lighter-duty assignments.

The economy has changed dramatically since the passage of the PDA, and today the hourly jobs that our members and other workers are striving to balance with family are not those good, family-friendly jobs. Workers, especially in the bottom 30 percent of the economy, are working harder to take home less, and they tend to have higher family care burdens and fewer resources to get stable, reliable care for their children and for the elderly that they take care of. Their jobs don't fit the realities of their lives. Some are at the mercy of rigid schedules, others have unpredictable schedules that are difficult to balance with the responsibilities they have to their families.

And as my colleague has just explained, they pay a high penalty for the balancing act that they're doing every day in the face of blatant and persistent pregnancy discrimination, and other kinds of failures to work any sort of flexibility into their work lives. And yet, the need to address work/life balance per se has not emerged as a rallying cry for low-wage workers. And I think this may, perhaps, be because the challenges that they face at the workplace are so basic. Experts and policymakers often identify too much work as the major obstacle to the demands of family responsibilities, but for SEIU building services workers, too little work, not too much work, is often perceived as the main concern, and securing more work hours is a top priority at the bargaining table.

Our cleaners often work four hours a night, five days a week. That's 20 hours of work, and often low-wage work. And as a result, many must work a second or even a third job to make ends meet, further complicating the balance that they must strike in their lives. Our school bus drivers often had good public sector jobs before the privatization wave that swept across the country. Private school bus drivers often work part-time or irregular schedules, can't access or afford employee-sponsored health care. And as Ms. Terman mentioned, the great majority of them don't have a single day of paid sick leave, never mind leave that they can spend to care for a sick child. This is a widespread phenomenon. Over 70 percent of workers cannot use leave to care for family members.

I wanted to spend just a few moments on a recent organizing drive we did amongst direct care workers in Massachusetts. These are workers at Solomon and Associates, and they provide community-based services for the disabled. We did a survey of those workers. Over half of them worked a second job. Nearly a third had childcare responsibilities. And one eighth attended school. A substantial proportion had relied on carpools or public transit to meet all of their commitments, and part-time work schedules were common.

They reached a contract -- they organized their union and reached a contract which I detail in my remarks, in my written remarks. But it gives you a sense of the kind of things that workers need to accomplish on the job in order to meet their responsibilities. For example, this contract provided the first base wage increases that these workers had ever received. And increasing their economic power is something that workers need in order to better meet their financial -- in order to have more financial resources to balance work and home responsibilities. It also outlined the kinds of leave benefits that they had access to, educating workers on the state and federal options open to them, and provided for the first time, personal leave for part-time workers, which is a major proportion of this workforce.

Perhaps most importantly, the contract transformed them from at-will workers to workers who were protected by just cause for all forms of discipline, including termination. They can now file grievances, access arbitration, and in places where workers lack the education and the resources to get to court, or even to the EEOC; they have a second line of defense against the kinds of family discrimination that occur often in workplaces.

In conclusion, low-wage workers and their unions may perceive work/life balance as a luxury issue, as secondary to their primary goals of improving wages and benefits. But as these examples illustrate, low-wage workers are balancing work and family responsibilities on a fine edge, and their need for solutions is real and acute. And workplace organizations and their unions need to make this a priority, and to speak of it as a priority that is on par with the need to increase wages and benefits for all American workers. And we look forward to the opportunity to partnering with you and the other stakeholders represented at this meeting in making a paradigm shift to truly serve the needs of the most vulnerable workers in the economy. Thank you.

CHAIR BERRIEN: Thank you Ms. Parker. Ms. Feinberg?

MS. FEINBERG: Good morning, Chairwoman Berrien, Commissioners. I very much appreciate the opportunity to be with you today to talk about the growing realities facing family caregivers of older adults, and especially the experiences of workers with elder care responsibilities.

Caring for an aging relative or friend is really the new normal of family caregiving in the United States. About 62 million family caregivers provide care to an adult with limitations in daily activities, such as bathing or dressing. The estimated economic value of their unpaid contributions is huge, estimated in 2009 at approximately 450 billion dollars. Now the average family caregiver in the United States is a 49 year-old woman who also has a job outside the home and spends nearly 20 hours a week providing unpaid care, typically to her mother, for about five years.

What makes elder care especially challenging and different from childcare is the often unpredictability of both its onset and its duration. Also, caring for an aging relative with multiple chronic health conditions can have negative effects on the caregiver's own physical and emotional health, their financial situation, retirement security, social networks, careers, and the ability to keep their loved one at home. The impact of care burden on working caregivers will likely grow in the future, as the population ages and more older workers are in the labor force.

About 42 percent of U.S. workers have provided care for an aging relative or friend, typically a parent. And nearly half of the workforce expects to be providing elder care in the coming five years. These trends are expected to accelerate as the 78 million baby boomers age, and juggle work and caregiving responsibilities. Caregiving has economic consequences for both the working caregiver, as well as the employer. About 7 in 10 caregivers of older adults report making work accommodations because of their caregiving tasks, and these adjustments are typically arriving late or leaving early, by far the most common response. But they can also include taking time off, cutting back on work hours, changing jobs, or stopping out of the workforce entirely.

The financial impact on working caregivers who leave the labor force due to caregiving demands is severe, can be severe. Family caregivers who are age 50 and over who leave the workforce to care for a parent on average lose nearly 304,000 dollars in lost income and retirement benefits over the course of that caregiver's lifetime, jeopardizing their own future financial security. Many studies document the business case for instituting workplace policies that support and accommodate caregiving employees. Human resources and cost savings to employers from offering these supportive arrangements can amount to far more than the cost of not doing so.

Because caring for older adults is done mostly by older workers, these working caregivers need supportive policies and protections against unlawful employment discrimination. In 2007, the EEOC issued important guidance on some of the ways in which discriminatory treatment of workers with caregiving responsibilities might violate the civil rights laws that the EEOC is charged with enforcing. However, the guidance is silent on the implications of family responsibilities discrimination as a possible violation of the Age Discrimination in Employment Act.

Studies show that caring for an aging relative is a responsibility that disproportionately falls and tends to occur in older ages. AARP urges EEOC to take note of these changing demographics in its guidance, and to expand the conception of the protected basis on which family responsibilities discrimination may occur, to include age.

It is certainly the case that elder care responsibilities can be overwhelming at times. However, most family caregivers handle these duties while continuing to do their jobs. The civil rights laws, properly enforced, should ensure that workers' opportunities are not limited by stereotypes, misperceptions, or unwarranted assumptions about caregiving for older family members.

I thank you again for the opportunity to testify before you today on the growing challenges of workers with elder care responsibilities, and will appreciate answering any questions.

CHAIR BERRIEN: Thank you, Ms. Feinberg. And finally, Ms. Ilukowicz?

MS. ILUKOWICZ: Good morning, and thank you for the invitation to be here. My name is Deane Ilukowicz, and I'm the Vice President of Human Resources for Hypertherm, an associate-owned company. I'm also the wife of a working professional and the mother of a four year-old, so this issue certainly has professional and personal interest to me.

Hypertherm is a manufacturing company located in Hanover, New Hampshire. Part of our mission statement is to provide for the development and well-being of our associates. We employ about 1,200 associates worldwide in more than 20 countries. About 50 percent of our population is in production-based jobs. Hypertherm is not a typical manufacturer, as you may have read in our statement.

We have honored our no-layoff policy since founded in 1968. We also offer flexible work arrangements for our associates, regardless of whether they are hourly or salaried. This certainly helps them balance both work and home responsibilities. Our paid time off program is structured in a common bucket of hours, so we don't ask associates to make choices between sick versus vacation time. This flexibility allows them to use the time where they need it most. This also promotes honesty between associates and leaders as far as why they really need the time away from work, which helps us solve their challenges.

This year we introduced a gift of time program, which allows associates to donate paid time off to other associates who may have serious need. We offer six weeks of paid maternity leave. We offer five days of paid paternity leave. We also have dedicated lactation rooms in every one of our U.S.-based locations, and offer day care and elder care referral services. We are particularly proud of our wellness efforts and our on-site wellness center. The wellness center employs a nurse and PA 60 hours a week. This provides a wonderful benefit to our associates to access medical care during their normal working hours.

We also have a very strong tie to the community. Over the last two years, our associates have donated more than 8,000 hours per year to the community. This time is provided to associates in pay, and they are generally used hours in their normal working shift. Many of our working caregivers use this time to volunteer in schools and elder care facilities to spend time with their loved ones.

So you might ask yourself why a smaller employer in New England spends so much time and energy and effort on all our programs and policies. At Hypertherm, we truly believe that our associates are our most valuable resource, and a key differentiator for us in the marketplace. It would be almost impossible for our competition to duplicate the passion and commitment of our employee population. We provide programs for our associates not just because the law says we should, because we think it's good business sense and the right thing to do.

Our commitment to our associates is what drives our policies, which are then compared to the law to ensure compliance. In most cases, we actually provide more than the law requires. One of our added guiding principles is to build our policies and programs around the 98 percent of our population that we really trust and believe are doing the right things, not the two percent that may choose not to. We provide access to all of our family-friendly policies, regardless of whether someone is salaried or hourly, and we truly believe that manufacturing work is noble and want to take this opportunity to contribute to exhibiting best practices in our community, our industry, and across other manufacturers.

On the other hand, some of those stories I've heard certainly cause me alarm as a working mom, and there may be companies who look primarily to the law and the requirements to design their policies. And when the laws may be complicating or confusing to some, it makes it difficult for them to do the right thing. In our view, the current laws are a little confusing and sometimes contradictory, and some of the employers out there could likely use some better guidance.

We would really like to see the Commission focus on clarifying what it takes to comply with the current laws. And regardless of who owns each respective piece of legislation -- where they overlap between the Commission and the Department of Labor in particular -- it would be helpful for employers to have coordinated, very concise documents that clearly provide employers what they need to know. I can tell you as an HR professional, my world is very gray. It's not black and white. And the egregious cases are very easy to look at and say, "My goodness, how in the world could that have happened in the workplace today?" It's the gray issues that, as an employer, we could really use some help with. I'm happy to take any questions, and again, thank you so much for the invitation to be here.

CHAIR BERRIEN: Thank you so much. And I believe you know, but we do have colleagues from the Department of Labor here as well, and we'll hear from them as well. So thank you for that point.

We'll begin a round of questions and comments from the Commissioners, beginning with Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Great. Thank you, Madam Chair. Thank you all for your testimony, very, very helpful. I totally agree with you that guidance needs to be clear and needs to be helpful. You know, how do you put out working guidance so people can understand and we don't just take the easy, egregious case, but we deal with the gray issues? And I think that's good advice. But I would assume that the work Hypertherm is doing around these issues is a business decision, that you see this as a competitive advantage for you, of providing this workplace in the way you do. Can you talk a little bit more about why this makes business sense for you?

MS. ILUKOWICZ: Absolutely. A couple of data points I can give you, Commissioner that may be of interest. Voluntary attrition is less than five percent, which is a remarkable number for a manufacturing company. And having and investing in a highly-trained workforce that wants to stay adds great value to the organization. In addition, providing these workplace flexibility benefits for us really increases the engagement level of our associates. Our engagement level is 20:1, and if you look at best-in-class companies, the standard is probably 8.5 to 10:1. So we have a highly engaged, very committed workforce. And that, to me, makes good business sense. The investment that we make in training our associates is a lot of time and energy, and the fact that we create an environment in which they feel supported, safe, and that we support these types of policies really creates that relationship with them. And again, I just think having that type of workplace environment creates a significant reward on the business side.

COMMISSIONER ISHIMARU: Do you see any competitive disadvantage of having this?

MS. ILUKOWICZ: I don't know that I could point to any. Honestly, you could argue that we spend an exorbitant amount of money to train people, but I would counterpoint that with the fact that we reap the reward with an engaged associate. So I really don't see a business shortcoming in making this type of investment.

COMMISSIONER ISHIMARU: And do any competitors or people in the same industry -- do they have similar types of policies, or are you an outlier, so to speak?

MS. ILUKOWICZ: I'd like to believe we set the stage in that regard. We certainly have great competitors in our industry, so I don't mean to make any disrespectful comments to them, because I think we have great competition. But I would say that our policies are best-in-class in regards to this topic.

COMMISSIONER ISHIMARU: Great. Thank you very much. I have a question for Professor Benard in Indianapolis. I'm delighted you could join us using our technology. Sometimes we talk about technology, but actually having you here on the screen is, for me, exciting.


COMMISSIONER ISHIMARU: Can you -- you talk in your written statement briefly about the stigma that people often face, both men and women, when they partake in policies if they're available. Can you talk a little bit more about stigma for both men and women?

DR. BENARD: Thank you. I'd be happy to. Yes, the stigma can take a few different forms, and this is a very new area of research, but there have been a number of very recent studies on this. In general, workers who request leave, or who request flexible work benefits, at least according to experimental evidence may be seen as engaging in less organizational citizenship, or engaging in lower levels of workplace commitment. So they might not be seen as the kind of workers who are willing to do extra things to help the organization beyond what their job requirements might be.

There also appears to be some evidence that there might be additional penalties for men. Now, in our earlier work we found that men seemed to be advantaged when they have children, but that may be because individuals are assuming that that person does not have primary caregiving responsibilities, and in fact they have others who take care of these responsibilities for them. There's been some work by a psychologist named Laurie Rudman, for example, showing that when men request leave, they are not only seen as worse organizational citizens, they're actually seen as less masculine and weaker. And this tends to have negative consequences in terms of how they're evaluated; in terms of how promotable they're seen, for example.

And so it seems like both men and women suffer in some ways, but flexible work might have additional penalties for men, because it's sort of at odds with that traditional male breadwinner image.

COMMISSIONER ISHIMARU: Madam Chair, I see that my time's about to run out, so I will withhold. But I want to thank, again, the panelists. And I especially want to note the social science work that's been done here in this area. I hope that, as we're developing future guidance, that we fully partake in the wealth of social science research that has gone on and that will continue to go on. Because I think it provides us with data that, quite often, we don't have, and this we should fully use as we're developing new policies. I thank the Chair.

CHAIR BERRIEN: Thank you. Commissioner Barker?

COMMISSIONER BARKER: Stephen Benard, I have questions for you too. I was curious when you talked about the reaction to women who had children. Did you all do any studies to look at whether it made a difference what the age of the children were? I mean, whether there was a perception that a woman with very small children is more of a liability than a woman who has children who are sort of at an established age?

DR. BENARD: Thank you for your question. We have mainly focused on examining reactions to women with small children who are at home, rather than women with older children or women with teenagers. But -- and we did that because the assumption is often that women with those types of children have the most caregiving responsibilities. But that's not necessarily true. For example, a lot of people suggest that raising teenagers has a very different set of challenges than raising young children, but it nevertheless is something that's very important. So we don't have data on different ages of children. In our studies, the parents often were portrayed as having two children of different ages, but they were mainly young children.

COMMISSIONER BARKER: I think that would be something interesting to look into. Another thing is, it's my understanding that the way you got your data for this study was, you submitted resumes, equivalent resumes. Is that correct?

DR. BENARD: That's how we conducted one of the experiments. We've done both controlled laboratory experiments, where we bring participants into a setting and have them evaluate resumes, and then we've done a field experiment where we submit those resumes. And the difference is basically --

COMMISSIONER BARKER: But they still -- they were all based on resumes, is that right?

DR. BENARD: Yes. Resumes, and then we included some other application materials.

COMMISSIONER BARKER: Okay. So I'm just curious. So, what you had was some of the resumes volunteered information that, "Oh, by the way I have two small children," or "Oh, by the way I have 17 children"? I mean, I don't typically see family information like that on resumes, and certainly employers don't ask those questions, and we don't want them to ask those questions. They shouldn't ask those questions. So isn't it a little unusual to just add that information to a resume? I mean, what's to say that, if I am an employer and I see two peoples' resumes, two women's resumes. One says, "By the way, I have 17 children," and the other doesn't say anything about family, you know, why would I presume that she doesn't have any children? Do the other resumes say "I have no children"?

DR. BENARD: No. The way -- well, I think that's a good concern, and we tried to settle that in a very subtle way that might reasonably appear on a resume. And the way we signal parent status, for example, on the resume there was one section for other activities the applicant was involved in. And on both the resumes they were involved in some kind of community organization. For the parent resumes, that community organization was a parent-teacher association, so they had been an officer or a fundraiser for that, and that was listed on some of the additional activities section of the resume.

The non-parents were portrayed as having been a fundraiser or otherwise an officer in a different kind of community organization. So we did try to signal that in relatively subtle ways. We also included an excerpt from a human resources interview that suggested the person had children.

When we applied for jobs, we signaled it in the same way. In the cover letter, we mentioned they were relocating to the labor market we applied for jobs in, and we either said "with their family" or we didn't say "with their family." So we tried to signal that in relatively subtle ways. We didn't put number of children or anything like that on the resumes.

COMMISSIONER BARKER: It just sounds to me like there's a subjective element there that would have to be accounted for. Because you know, there's some sort of -- your conclusions that an employer concludes that when they say family, that that means children and not husband, or that that's where my parents live, for example. So I think that raises some interesting questions.

Also, with just a little bit of time left, Ms. Ilukowicz -- am I pronouncing that correctly, or close to correctly? I was just curious, how many employees does your company have?

MS. ILUKOWICZ: We have about 1,200 associates in 20 countries. Of that, about 1,000 are in the United States.

COMMISSIONER BARKER: Are the 1,000 in the United States in one location?

MS. ILUKOWICZ: We have 11 buildings in the Upper Valley of New Hampshire, and we have one remote location in Lockport, New York. And then we certainly have field-based salesmen in multiple states as well.

COMMISSIONER BARKER: So it sounds like most of your employees -- of the 1,100, most of them are in New Hampshire --


COMMISSIONER BARKER: -- and fairly close together, yes?


COMMISSIONER BARKER: Thank you. That's my questions. Thank you so much. I'm sorry I didn't have time for more questions.

CHAIR BERRIEN: Thank you, Commissioner. Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you. Ms. Parker, thanks for mentioning that low-wage workers often have too much flexibility. I would certainly commend the Watson-Swanberg report to your attention. The data there showed that half of low-wage workers need traditional flexibility, but the full other half need predictability. So thank you for mentioning that.

Ms. Terman, something that struck me as you were talking about someone who just needs to sit on a stool, and I realized that this was in none of the testimony that came in. In terms of protections under the ADA, I would commend to your attention that the ADA prohibits employers from having qualification standards that screen out or tend to screen out people with disabilities, unless the employer demonstrates that standard is job-related and consistent with business necessity.

The definition of disability, for purposes of that qualification standard, is the third prong of disability, which is simply any physical or mental impairment that isn't both transitory and minor. So I certainly recommend that you should be looking at any company that has a rule that says "You must stand for 12 hours" -- right now, that will screen out people with back impairments, and they have to show it's job-related and consistent with business necessity. Now, they might be able to, like if you have to lift 20 pounds, and then you move into the accommodation world. But I just realized that wasn't in any of the testimony.

Okay. A question to Dr. Berman. I was struck by the fact that, in your data, women without children did the best across the board in your data. That is, they did significantly better than women with children, but they also did better than men, either with or without children. And I'm wondering if this is the flip side of the caregiver stereotype that you talk about. That is, I'm wondering if employers today consider women who have chosen not to have children, or just have not had children, to be the most reliable workers? You know, sort of like they're now the most ideal workers, because they would most likely be devoting themselves to the work, so that these employees might even be seen as better than fathers, who in this day and age might be doing some of that annoying caregiving.


COMMISSIONER FELDBLUM: I'm wondering about your thoughts about that?

DR. BENARD: Thank you for your question. That's actually a pretty consistent finding, not only in our work but in some other work, that people do rate the women without children quite highly. And we suspect that is something along the lines of what you suggested, that perhaps, especially because people often expect women to have children, that women who don't have children might be perceived as especially committed to work, especially in professional occupations. And so we think they may be seeing a bonus for that reason.

In the long run, most workers in the workforce do have children, and so I'm not sure that that's an advantage that's necessarily going to help most workers, but we do see that pattern.

COMMISSIONER FELDBLUM: Okay, and my apologies. It's Dr. Benard, not Berman. Sorry for changing your name on you. And thank you for that last comment, because, as Joan Williams states in her written testimony, quote, "Women will never achieve equality until mothers do." Now, I think that's an interesting statement, because as you say, your data shows we're probably seeing discrimination against mothers, rather than discrimination against women. But because the majority of women in our society will become mothers, just based on the current data, we have the ability for someone to say a sentence like, quote, "Women will never achieve equality until mothers do." I think that does raise some interesting theoretical and practical questions that I hope we can explore through the rest of the hearing.

A question to Ms. Terman. You, in your written testimony, talk about something that you didn't say in your oral testimony. So just to put it out there, you note in your written testimony that the ADA requires, because of the expanded definition of disability under the ADA, employers to make accommodations for folks with a range of physical and mental impairments; that the PDA requires that if an employer is making accommodations to other employees with disabilities, they can't then deny those accommodations to pregnant women.

Given the breadth of the coverage of the ADA now, and given the interaction between the ADA and PDA, it would seem to me that it would be a very risky legal proposition, given the laws currently on the books, for any employer with more than 15 employees to deny a pregnant woman the type of reasonable accommodation that it has to provide to individuals with a range of other impairments under the ADA.

Now, I understand that many employers and employees have no clue about their existing rights or responsibilities, and that there's a significant amount of education and outreach that a lot of us need to do. But my question to you, as a legal matter, do you believe it would be a risky proposition for an employer today, who is covered under the ADA and the PDA, to deny an accommodation to a pregnant woman if that accommodation would not impose an undue hardship on the employer?

MS. TERMAN: Yes, I do. Thank you for your question. I think that's a really important point. The PDA directs employers to treat pregnant women, and women with pregnancy- and childbirth-related conditions, the same as they treat those who are similar in their ability or inability to work. That is the clear mandate of the PDA under the ADA as amended. Now, that group of people is quite a bit broader, and so employers today have an obligation to provide reasonable accommodations and to engage in the interactive process with a much broader group of people with mental and physical impairments. Therefore, pregnant women should be treated the same under the clear mandate of the PDA.


CHAIR BERRIEN: Thank you. Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you Madam Chair. I have, in the time that I have, three questions, so I'll try to get them out here. So first, Ms. Parker, I wanted to ask you, has SEIU been able to incorporate into any of your collective bargaining agreements flexibility or any kind of caregiving -- how have you addressed it in your collective bargaining agreements?

MS. PARKER: I'm glad you asked that, because my remarks primarily focused on lower-wage workers who -- their priorities at the bargaining table often don't get that far. But we are the second largest public services union in the country. We represent a number of, near a million public services, public sector employees. And in many of those contracts, there are flexible work arrangements.

Another example which I believe was brought up at your 2007 hearing was our Local 1199 in New York City was able to put together a fund for childcare subsidies and provide it through the employer contract for low-wage, I believe it was home care workers. So that work has been done in the places -- in many of our contracts. I think I wanted to turn your attention to the situation of so many workers in our economy, in and out of SEIU, who simply don't even have access to the ability to sit down and make a contract, and don't have knowledge of their rights and the need, really, to push that education down through a number of different ways.

COMMISSIONER LIPNIC: And I'm just curious -- and I shouldn't ask this follow-up question because I'm going to eat up my time. But I'll try to ask it…

MS. PARKER: I'll try to answer.

COMMISSIONER LIPNIC: What tension have you found in those contracts where you've been able to negotiate some kind of caregiving flexibility, that with your seniority system?

MS. PARKER: I think I wouldn't be the right person to answer that question, since I don't do a lot of negotiating myself. But just as a general matter, I think my colleagues who do negotiate, especially in our local affiliates, find that the experience of coming together as a union of employees often results in people making trade-offs and decisions that are the best for workers over the course of their time at the workplace, and they're able to think longer about what you need when you first come on as a young parent, and what you might need later in life when you have elder care or other kinds of responsibilities.

COMMISSIONER LIPNIC: Right, okay. At some point, I will probably follow up with you about that question. Ms. Feinberg, I wanted to ask you, in your testimony you talked about, over a period of time, the tremendous wage loss for people who have to exit the workforce. But I wonder if you could elaborate a little bit, not just on the wage loss aspect, but about the difficulty of people trying to get back into the workforce, sort of the on-ramp back in, when you are 55 and older and trying to get back in.

MS. FEINBERG: Thank you for that question. This is a huge and a growing issue, and there is some research that is showing that during the prolonged economic downturn, workers who had elder care responsibilities, who had to drop out of the labor force because of wanting to care for an older spouse or a parent; were having difficulty getting back into the labor force. So I think this is a growing issue. We're not only seeing more older workers remaining in the workforce, but also higher unemployment of older workers trying to get back in who may have had to leave their jobs or lost their jobs.

COMMISSIONER LIPNIC: And do you have specific data on that, or you're tracking that?

MS. FEINBERG: We can get you that data, yes, through AARP.



COMMISSIONER LIPNIC: Okay, thanks. And I will come back to you on that, too. Ms. Ilukowicz, did I pronounce that correctly? In your testimony, I was curious, you talked about -- I'm curious about the difference between -- if you see any differences between your exempt employees and your non-exempt employees, and how they use their leave, how they access your flexible work program? If you could talk about that a little bit.

MS. ILUKOWICZ: Sure. Thank you for that question. It is, admittedly, harder at times with our non-exempt, production-based associates, but we actually publish a guidance document for leaders and associates to help them navigate through the flexible work options that they have. For example, we have a number of associates who are married in our workplace. One will work one shift, one will work the other, and they'll meet and/or adjust their schedules slightly so that they can manage the hand-off, if you will.

I was sharing with one of the panelists this morning, we actually have a high chair in our cafeteria, so that if a parent wants to come in and take advantage of that, they certainly can. Some of our exempt staff, obviously, has a little bit more flexibility in the course of their day. We have engineers that work very long hours during product launches, for example, and they will take chunks of time in the middle of the day to care for their children or their parents. But we do everything we can to provide that equal benefit.

COMMISSIONER LIPNIC: And just quickly, what have you done, or what struggles have you found, in creating sort of this culture of flexibility, and particularly with your managers?

MS. ILUKOWICZ: That's a great question. We spend a lot of time on the education component. I think this gets back with what Commissioner Feldblum said, that through education and helping the leaders understand our culture and what we're trying to create at Hypertherm, that translates down to the associate population. And our human resources group is very involved in all these situations. When someone comes and asks for an accommodation on their flexible schedule, the HR person for that group will get involved immediately and work that through with the leader and the associate to find the best solution.

COMMISSIONER LIPNIC: I see I'm out of time. Thank you all very much.

CHAIR BERRIEN: Thank you. I'd like to start with Ms. Feinberg. In your written testimony and very briefly in your statement, you noted that while we have focused historically on sex discrimination as it relates to pregnancy and caregiving responsibilities, that we have not addressed age discrimination in the same way, and that, particularly given the demographics you outlined for family caregivers, that you encourage us to do that.

I wondered if you could talk a little bit about either, in AARP's experience, whether this issue has begun to percolate or gotten any attention in the courts yet, and also whether you or any of the research that you've done has touched on a compounding effect, because many of the caregivers are women, but you've also suggested that many will be in the protected category for the Age Discrimination Employment Act. Whatever you might be able to share with us on those points.

MS. FEINBERG: Well thank you for that question. Family caregiving for older relatives or friends is a huge and growing issue within AARP, because many of our members are experiencing this themselves. We also know that about nearly half of AARP's members are also working, so it's that juggling at this end of the continuum that is clearly going to be a growing issue.

I would say that the research area, in terms of the labor force issue with older workers and with family caregivers, needs to intersect, increasingly more so. And we are looking at best practices that employers can do to help accommodate workers, particularly older workers who are staying on the job, or as the Commissioner said, may have lost their job, and then trying to re-enter the workforce.

CHAIR BERRIEN: Thank you. I see some other heads nodding. If anyone else wanted to weigh in, please feel free.

(No response.)

CHAIR BERRIEN: Ms. Ilukowicz, the Commission, under Commissioner Barker's leadership, has begun to explore how we can better meet the needs and to address -- to direct information about compliance to the small business community. So I'd like to ask if you have any suggestions that you can share or would like to share with us, and I think our partners in federal enforcement who are here as well, about how we communicate what the laws require to you and other businesses that you may have been involved with, and what we may be able to do to more effectively get out the word about what the law requires.

MS. ILUKOWICZ: Thank you for that question. I think a very effective medium that we've utilized and take advantage of on our end as an employer is webinars. I don't know if the Commission has done, or taken the opportunity to do education through webinars, but it's been a very effective way to get a very direct, concise message across. You can record them, you can put them up on your website. That way, employers can go back and listen to it, very similar as the recordings of the meetings.

I also think that very concise, clear documentation around where the intersections are would be helpful. And thirdly, to a point I made, a lot of the cases we heard about this morning were just so egregious that that would be pretty easy to see. But it's the blurry ones where multiple things intersect and you're just trying to do the right thing, and may not even know where to go to ask the right questions. If you could give some more guidance in those types of case scenarios, that would be very helpful.

CHAIR BERRIEN: Thank you. And Dr. Benard, I wanted to ask you -- and we'll trust that the technology will continue to cooperate. I wanted to ask you whether either your research or the research that you have surveyed, gives any insight, provides any insight about either regional variation or occupational variation concerning the trends or the patterns in the attitudes that you've detected.

DR. BENARD: I don't -- I'm not familiar with work on regional variation. There is beginning to be more work on occupational variation. I should say, it doesn't look like the motherhood penalty is explained by women and men being in different occupations, so it doesn't look like the fact that, on average, men and women sometimes work in different kinds of jobs -- that doesn't account for the motherhood penalty. There is work suggesting the motherhood penalty is actually much greater in about the bottom quartile of the income distribution. So women who work in low-wage jobs tend to pay a larger motherhood penalty than women who work in high-wage jobs, although there is a motherhood penalty across most of the earnings distribution. That greater penalty in the lower quartile of the distribution is thought to be caused by some things we've talked about already, and that's partly lower-wage women having lower access to childcare and less flexibility in these terms.

CHAIR BERRIEN: My time is up. I want to thank the entire panel for your participation, Dr. Benard remotely, and to all of the panelists who are here with us live, thank you so much. Some of you have traveled great distances as well to be here, and we appreciate all of the time that you've put into both attending and preparing for today, and we are delighted that you've joined us and do look forward to continuing to hear from you and collaborate with you as we go forward in this work. So thank you so much.

We're going to take a brief break now. I'm going to ask for everyone to return in 10 minutes, and then we will begin promptly with our second panel.

(Whereupon, a 10 minute recess was taken.)

CHAIR BERRIEN: Good morning. The EEOC meeting will now come back to order. Welcome back. And at this time, we will turn to our speakers for panel two, entitled Statutory Framework and Enforcement Efforts.

EEOC's General Counsel, P. David Lopez, will provide introductory remarks for this panel. He'll be followed by Peggy Mastroianni, EEOC's Legal Counsel, who will provide an overview of EEOC policies on pregnancy and caregiver discrimination and discuss recent trends in charges. Melvina Ford, Senior Policy Advisor in the Office of the Administrator, Wage and Hour Division, U.S. Department of Labor, will discuss the Family and Medical Leave Act and the Affordable Care Act's new workplace lactation provisions. And finally, Emily Martin, Vice President and General Counsel of the National Women's Law Center, will provide an overview of private litigation on pregnancy and caregiver discrimination issues. Thank you all for being here. General Counsel Lopez?

MR. LOPEZ: Thank you Chair Berrien and Commissioners, for the opportunity to discuss the EEOC's litigation in this important area. Discrimination against pregnant women and caregivers potentially affects every family in the United States. As a trial attorney and general counsel, I can bear witness to the heartbreaking personal and economic consequences to women and their families who suffer discrimination as a result of pregnancy, which ordinarily is a time of joy, and discrimination based on caregiver status.

I applaud the Commission's extensive efforts in this area to address pregnancy discrimination through public education, outreach, and policy guidance. Even though I am the agency's chief litigator, I operate from the premise that the vast majority of employers make good faith efforts to comply with the antidiscrimination laws, including federal prohibitions against pregnancy discrimination.

When public education, outreach, and voluntary compliance are not successful, however, litigation remains an option. Over the past 10 fiscal years, the EEOC has filed 268 lawsuits alleging pregnancy discrimination, resolved 216 lawsuits, and obtained more than 42 million dollars in monetary benefits for victims of discrimination. As a law enforcement agency, however, it is important to remember that when the EEOC resolves a lawsuit; it is in the form of a public consent decree, which includes not only monetary relief to make the victim whole, but as importantly non-monetary relief, such as changes to the policies, training to ensure that discrimination does not recur.

Of the 268 lawsuits alleging pregnancy discrimination, approximately 75 percent included allegations of unlawful discharge. Nineteen percent included allegations of disparate terms and conditions of employment. Twelve percent included allegations of unlawful harassment. And 10 percent included allegations of unlawful failure to hire. Of course, that adds up to more than 100 percent, because often there are multiple bases and theories.

Defendants represent a broad range of industries, and charging parties included women in all job categories, entry-level to professional. Last year, the EEOC filed 20 cases involving pregnancy discrimination, a number which has increased over the past two years. The cases addressing pregnancy discrimination we have seen range from straightforward, overt cases of discrimination to more complex cases involving leave and caregiver responsibilities. At the core, all of these cases involve employers who held stereotypical assumptions about pregnant women or caregivers.

Let me give you three examples of the types of cases the litigation program has encountered and redressed. First, let me discuss overt discriminatory bias. I know the previous panel made mention of these cases. Unfortunately, it appears that a few employers have forgotten or never learned that it is against the law to discriminate against women because of pregnancy. Many employers we litigate against do not even have a policy against pregnancy discrimination. As a trial lawyer and general counsel, I have encountered several cases involving overt discrimination. Indeed, anecdotally, I believe we probably have more direct evidence cases in this area than any other area.

For instance, recently our Phoenix District Office was granted summary judgment on liability, which is very rare in litigation, in a case against High Speed Enterprises involving a pregnant woman who was denied an entry-level position at a fast food restaurant because of her pregnancy. According to the District Court's opinion, the store manager expressly told Linda Murillo that he could not hire her because she was pregnant. Subsequently, a Phoenix jury found the discrimination so severe it awarded punitive damages, a remedy established by Congress for the most egregious cases and designed to deter future violations.

I also recall a case I had involving a pregnant woman who worked as a courtesy driver for a car dealership. And when she announced that she was pregnant, she was fired immediately. And the employer gave as its reasons, in writing, its concern that her morning sickness would cause her to cramp up and be nauseous, and she would be a danger to herself and others. They didn't ask her.

Second, we have litigated class cases involving disparate treatment applied to leave policies. In 2010, our St. Louis District Office filed a case against Akal, a nationwide security firm. In this Title VII lawsuit, we alleged that the defendant discriminated against pregnant contract security guards at eight Army bases throughout the United States by 1) removing the job duties of pregnant guards, 2) requiring them to take unscheduled physical agility tests, 3) moving them to part-time desk jobs, 4) forcing them to take maternity leave prematurely and to reapply, and 5) even discharging them. In contrast, defendant gave guards with non-pregnancy-related short-term medical conditions modified duties, such as office positions, while they recuperated. The two year consent decree provides 1.6 million dollars in monetary relief for 26 claimants, and extensive non-monetary relief as well.

Third, discrimination based on stereotypical views of an employee's caregiver status is a form of sex discrimination prohibited by Title VII. Recently, our Denver office resolved a case against a Denver hotel management company for 105,000 dollars and the development of strong training on stereotyping. We alleged the employer denied charging party promotion to a newly-created position of assistant human resources director because of her caregiver responsibilities as the mother of two young children, and the job was given to a less qualified and less experienced employee. The managers explained to the woman that she was being passed over for the job because of her role as a mother of young children, asserting that she could not relocate or work the required 50 to 60 hour work week, because she, "had a full-time job at home with her children". The company never asked the charging party if she would be willing to relocate or work extended hours. Instead, we alleged that decision-makers assumed that, because the complainant was a mother and primary caregiver for small children, she would be unwilling to relocate or work extended hours.

As I mentioned, these cases are sometimes straightforward and sometimes complex. I want to mention briefly two recent cases involving the EEOC which resulted in adverse decisions. Last August, a District Court in New York granted summary judgment with respect to EEOC's pattern of practice allegation that Bloomberg discriminates based on sex (pregnancy). The Commission's complaint alleged Bloomberg perpetrated a pattern of practice of discrimination against pregnant women and women who had taken maternity leave with respect to their compensation, demotion, and other terms and conditions of employment. We continue to prosecute individual pregnancy discrimination claims in the case with respect to 38 individuals.

We also had a very recent decision in a case against defendants out of our Houston District Office, defendants, Houston Funding and Houston Funding Corp. We alleged that Houston Funding violated Title VII by firing charging party because of her, "pregnancy, childbirth, and related medical conditions," and the medical condition involved was lactation. The Court did not agree with the EEOC and dismissed the suit on summary judgment. The Court did not address the circumstantial evidence of pregnancy discrimination presented to the Commission, and ruled as a matter of law that lactation is not a pregnancy, childbirth, or related medical condition. We are currently evaluating whether to appeal the Court's ruling, and no determination has been made.

To summarize, it is unlawful for employers to deprive a woman the opportunity to earn a living based on stereotypical assumptions about her ability to perform job responsibilities, such as driving. It is unlawful for employers to deprive a pregnant woman of the opportunity to sustain herself or her family based on stereotypical assumptions as to whether a pregnant woman will return to work, or miss time to take care of sick children, or will be less devoted to the employees. When an employer does this, it violates federal law.

Chair Berrien, Commissioners, in these challenging economic times, it is important that we use the full means at our disposal, including this very important public meeting, to address discriminatory stereotypes that deprive workers full economic opportunity and independence.

CHAIR BERRIEN: Thank you, General Counsel. We'd like to turn now to the Legal Counsel of the EEOC, Peggy Mastroianni.

MS. MASTROIANNI: Good morning. Glad to be here. I am going to discuss EEOC's enforcement and policymaking efforts with respect to both pregnancy discrimination and discrimination against caregivers. And let me start with the early days, that's pre-PDA. Our stakeholders knew from day one that Title VII forbade pregnancy discrimination, even though the courts didn't necessarily all know that then. And during the first year after EEOC opened its doors, we received thousands of pregnancy discrimination charges alleging strange questions during interviews about family planning. We received charges from pregnant women who were not hired, who were fired, forced to take leave. And charges from women who, following childbirth, came back to work and discovered that their pension credits were gone, and their seniority as well.

With the passage of the PDA in 1978, we amended our pregnancy guidelines and we focused on pregnancy issues such as light duty, leave, and health insurance. Meanwhile, those issues from the pre-PDA days never went away, as a lot of speakers this morning have observed.

EEOC's enforcement data for the last decade looks about like this. Since 2001, we've resolved 52,000-plus pregnancy discrimination charges. In a quarter of these, a little over 25 percent, actually, we got relief for our charging parties, a total of 150.5 million dollars over this decade. And this is in addition to the money that was recovered in litigation. Our charging parties have been from all walks of life: janitors, truck drivers, teachers, senior executives, respondents: the whole range from small employers to Fortune 500 employers; the charges from every state, and not surprisingly the leading states are Florida, Texas, California, Illinois, and New York.

We've also seen a steady increase in the percentage of pregnancy discrimination charges that we receive from women of color, from about 19 percent in 2001 to 25 percent in 2011. I think these figures are lower than the reality, because we do have a category called "other" or "unspecified race," and I'm sure there are women of color there.

The issues that we are seeing, again, they very much reflect what the General Counsel discussed, 68 to 71 percent, in any of these given ten years, of the charges involve discharge. The second category is terms and conditions of employment, which includes closer scrutiny of pregnant workers, harsher discipline, special medical clearance requirements, no health coverage. And this was 18 to 25 percent of the charges over this ten year period. And then the third largest category is harassment, 9 to 13 percent of the charges.

Now I want to move on to pregnancy and the ADA. The ADA protects people with impairments that substantially limit a major life activity. To what extent is pregnancy protected under the ADA? This is a question that is getting a great deal of attention in the media, and it has already gotten quite a bit of attention in this meeting. Since 1991, the Commission has said that ordinary pregnancy is not an impairment. Consequently, it cannot be a disability. And this we said in our original ADA reg and in the recently amended ADA reg, not in the reg, let me clarify, in the appendix to the reg.

But we have also said, in the most recent appendix to the ADA reg, that impairments associated with pregnancy can be disabilities. So for example, a pregnant woman with gestational diabetes may be entitled to a reasonable accommodation of break time to eat some snacks periodically. So this is something the Commission has said for many years, but now it is in the appendix to the reg.

I think two effects of the ADAAA, of the ADA Amendments Act, should be noted here. First of all, the ADA Amendments Act tells us that the mantra is broad construction, and this means that more temporary impairments are covered under the ADA Amendments Act. And that, in turn, means that more of these pregnancy-related kinds of impairment we can expect to be covered under the ADA.

The second effect of the ADA Amendments Act is a little more indirect. And it was alluded to this morning, I think, in the exchange between Commissioner Feldblum and Ms. Terman. That is, that more people can be expected to receive reasonable accommodation because of the ADA Amendments Act. And this, in turn, essentially will result in a larger pool of PDA comparators, a larger pool of PDA comparators. Now, a few courts have started to address this issue, and the two decisions that I've read, they're not buying this. But I think we're just beginning to talk about this whole issue.

Now briefly, turning to caregivers, in 2007, mindful of what Lynn Feinberg has called "the new normal," although I'm using her term and applying it to caregivers generally -- the new normal is that much of the workplace consists of workers who are caregivers. And we were mindful of that, and we were led very much by Commissioner Ishimaru to issue policy guidance on the disparate treatment of caregivers. Our challenge was, how do you protect caregivers? And the answer was, that they could only be protected under any of our statutes through the existing protections. In the case of Title VII, the prohibition against sex discrimination was crucial, although race or national origin discrimination could both figure in these kinds of caregiver cases.

The essence of this discrimination is that -- I'd better wrap this up, but the essence of this discrimination is stereotyping. We also noted in our guidance that the ADA extends some protections via the association provision. The last thing I simply want to say is that the list of our guidance is attached as an appendix to my remarks. Thank you.

CHAIR BERRIEN: Thank you. It's tough on the other side of the timekeeping clock, isn't it?


CHAIR BERRIEN: Okay. We'll turn now to Ms. Melvina Ford, from the Department of Labor.

MS. FORD: Thank you Chair Berrien and Commissioners, for inviting me to speak with you today. And I'd like to especially acknowledge former Assistant Department of Labor Secretary, Commissioner Lipnic.

The Secretary of Labor has a vision of good jobs for everyone, which includes improving workplace flexibility policies, promoting equal opportunity and economic security, especially for the most vulnerable workers among us. Central to this vision is the Wage and Hour's enforcement and administration of the Family and Medical Leave Act and the Nursing Mothers Break Time Law. The Wage and Hour Division has over 50 district offices around the country, and just over 1,000 investigators to enforce some of our nation's most comprehensive federal worker protection laws.

For fiscal year 2011, we received over 2,200 FMLA complaints and resolved approximately 2,100 complaints. In comparison, the Department's FMLA year 2000 survey showed that over 80 million employees work in establishments that are covered by the FMLA and meet FMLA criteria for eligibility. This disparity is too great. So now we are considering ways to impact compliance with FMLA on a larger scale, to ensure that workers can effectively balance the needs of their families, their health, and their jobs.

Last July, the Division hosted a roundtable discussion for the Department, focused on the strategic enforcement of FMLA, which included remarks from your Chair. At the roundtable, participants indicated that they were seeing a dramatic rise in FMLA claims. And we've heard discussion about why today, so I won't revisit that.

They also noted that most of the violations are occurring in low-wage industries, in particular wholesale and retail industries and companies with a large workforce of hourly workers. They also noted that low-wage and vulnerable workers had little knowledge of, and trouble accessing FMLA leave, and we heard again and again the need for clear guidance, particularly on those laws that overlap between the EEOC and the Department of Labor.

To begin to respond to this need, the Wage and Hour Division has been focused on increasing our capacity to conduct effective investigations. We're equipping our investigators with BlackBerries and laptops, to encourage them to do more on-site investigations, which is critical to identifying FMLA violations. We've also significantly increased our language capacity, in a desire to do more investigations on behalf of low-wage and vulnerable workers. We're also exploring ways to be more strategic in the ways that we develop cases to litigate, such as cases that involve systemic policy issues or ones that involve issues that the Department's voice needs to be heard on.

The Department already has an active amicus program, most recently arguing for a mixed-motive analysis in an FMLA retaliation case that your general counsel mentioned, Breeden v. Novartis in the D.C. Circuit. And we believe that amicus participation in particular presents a unique opportunity for collaboration between federal agencies. The Division also agrees that there is a need for more public awareness about FMLA. In fact, as I was preparing for this hearing, I by accident learned that the find it by topic leave benefits for FMLA is one of the 20 most requested topics in the entirety of the DOL website.

Finally, the Department will soon begin collecting data with two new FMLA surveys, building off of the 2000 survey report, to better understand the need for and experience with FMLA, both from the employee and employer perspective. For nursing mothers, the Division is charged with administering the new break time law, which was signed into law in March of 2010 and requires covered employers to provide a reasonable amount of break time for a nursing mother to express milk for a child of up to one year after its birth. Employers are also required to provide a space for a nursing mother to use to express milk that is not a bathroom, and that allows the mother to be shielded from view and free from intrusion. The law reaches the 7 million workers covered by the Fair Labor Standards Act who are not exempt from its overtime provisions.

In addition, over 20 states have passed laws related to workplace lactation that provide for varying degrees of protection. Last year, we published a request for information on the law and received over 1,800 comments. We've now completed our review of those comments and can report that most were in favor of the law. Many of the comments came from current or former nursing mothers, who described their experiences and needs, which echoed the Department's own assessment of the factors that needed to be considered to enable a nursing mother to express milk at work.

Comments from employer representatives encouraged the Department to require nursing mothers to give advance notice to their employers if they intend to pump at work, so that employers can make arrangements to accommodate them. Some were also concerned about identifying appropriate space. The comments also confirmed that the employers who will likely be most challenged by this law are ones that have mobile workers, or workers in non-office settings such as restaurants or delivery drivers. However, the law does provide an undue hardship exemption for employers with fewer than 50 employees who can demonstrate that compliance would pose a significant difficulty or expense.

So while it's correct that there is no actual law that per se bans discrimination against caregivers, together the FMLA and the new Nursing Mothers Break Time Law could effectively operate to provide protection for several key aspects of caregiving, including pregnancy, the decision to nurse, and the ability to care for the health needs of oneself and family members. Thank you, and I look forward to your questions.

CHAIR BERRIEN: Thank you so much. And Ms. Martin.

MS. MARTIN: Good morning, Commissioners, Counsel. Thank you so much for having me here today. More women work during pregnancy, through later stages of pregnancy, than ever before. But as we have heard today, pregnant women still face obstacles on the job, particularly in jobs that require running, lifting, standing, or repetitive motion, activities that may pose challenges to some women at some stages of pregnancy.

Many of these physically demanding jobs, such as law enforcement or trucking, have been traditionally held by men. Physical barriers can force pregnant women out of these relatively high-paying, non-traditional jobs, jobs that are already particularly difficult for women to enter. Other physically demanding jobs are female-dominated and often low-wage, such as nursing assistants, cleaning, and cashier positions. Mismatch between job duties and pregnancy's potential physical effects takes a particular toll on low income women, who are more likely to be in jobs that have less flexibility.

Many of these women could continue to work with slight job modifications, but when women face a physical conflict between work and childbearing, if the Pregnancy Discrimination Act doesn't offer a solution, they'll often lose their jobs. And their families will lose income at the very moment their financial needs increase. These physical conflicts are today one significant reason why pregnant women lose their jobs, and the PDA holds great promise for answering these women's needs, but courts have been inconsistent in enforcing that promise. And that is why Commission guidance on these issues is so crucial.

Today, I'm going to focus on trends in the cases brought by women who sought temporary modification of job duties or policies because of pregnancy, childbearing, or related medical conditions, given that others have addressed and will be addressing the caregiving issues more closely. First, let me briefly address light duty policies. Many physically demanding jobs, such as law enforcement, make light or modified duty assignments available, but only to those who are injured on the job. Pregnant women are thus excluded.

The language of the PDA, however, requires equal treatment for pregnant women and those similar in their ability or inability to work, thus defining the sole criterion for comparison to be ability to do the job. The plain language prohibits employers from crafting additional criteria that deny accommodations to pregnant women while providing accommodations to those similar in their ability to work.

Some courts have found restricting light duty in this way violates the PDA, when evidence demonstrated that the policies were inconsistently applied in fact, but others have termed on-the-job injury requirements to be pregnancy-blind, and have concluded that pregnant workers are not similarly situated to those injured on the job. These rulings ignore the standard set out in the PDA and force women out of work.

Second, courts have inconsistently applied disparate impact analysis under the PDA. Some courts have found that, for example, light duty policies that are limited to on-the-job injuries do have an unlawful disparate impact. Other courts, however, have indicated that requiring a change in workplace rules to avoid a disparate impact on the basis of pregnancy or childbirth, particularly in the context of leave policies, would amount to prohibited preferential treatment of pregnancy. But Title VII's antidiscrimination principle requires modification of rules that harm a protected class and serve no business necessity, and this principle applies with equal force when the class harmed is pregnant women. There's a great need for Commission guidance regarding disparate impact pregnancy discrimination analysis.

Finally, and most importantly, as many are noting today, the ADA Amendments Act of 2008 has important implications for pregnant women. The PDA is violated when pregnant employees are denied privileges that are afforded employees similar in their ability or inability to work. And since passage of the ADAAA, employers are legally obligated to accommodate a range of disabilities that mimic typical pregnancy symptoms, for example, a temporary back injury that leaves an employee unable to lift more than 20 pounds, or a condition that results in shortness of breath in walking reasonable distances. As a result, the PDA's non-discrimination requirement automatically extends the ADAAA duty to accommodate to pregnancy symptoms. In many instances, this duty to equal accommodation, this duty to provide equal accommodation, will avoid the need for the disparate impact analysis or the light duty analysis that I've just talked about.

Courts have not yet addressed the interaction of the Amended ADA and the PDA, but two recent district court opinions demonstrate the need for Commission guidance. These two courts refused to compare an employer's treatment of individuals accommodated under the ADA to the employer's treatment of a pregnant woman precisely because employers were legally obligated to accommodate the individual with disabilities. According to these courts, individuals accommodated under the ADA are per se not similarly situated to pregnant women. Neither the language nor the purpose of the PDA or the ADAAA supports this approach. These decisions underscore the great need to address the ADA Amendments' significance to the PDA. Thank you for the opportunity to speak with you today, and I look forward to your questions.

CHAIR BERRIEN: Thank you to the entire panel, and we'll begin questions, five minute rounds each, with Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Great. Thank you, Madam Chair. Ms. Ford, thank you for your testimony. It sounds like you folks are busy at the Wage and Hour Division. You know, one thing that I've been pleased, under Chair Berrien's leadership, is the interaction, the increased interaction we've had with our colleagues at the Department of Labor, most notably with our friends at the Office of Federal Contract Compliance Programs.

But can you talk a little bit about the relationship we've had with Wage and Hour Division? And, how do you get both your folks and our folks to understand what the other folks do? So when they hear about things, they can -- if they don't have jurisdiction, that they can get it to the right place?

MS. FORD: So I think a good model has been the recent compensation training that the EEOC developed to spot pay discrimination, and Wage and Hour investigators and managers were allowed to participate in that training, and I think we actually had some of our training folks actually help out with designing some of the protocol, at least walking folks through the sort of records that we see when we do investigations. And I think that's a good first step.

I can foresee in the future other opportunities where we can do cross-training for our investigators in the field on how to issue-spot, because oftentimes FMLA claims come up as a part of discrimination claims. And in my former life as a practitioner, typically the discrimination claim might present easier at first, so it's important that our investigators on both sides know how to spot those issues and have vehicles for referring. So I think we're starting to do some of that cross-training, and hopefully we will do more of it in the future.

COMMISSIONER ISHIMARU: And are there relationships on the ground? We have district offices, like you do, around the country. I'm assuming that we are building relationships at the local level, so people know who their colleagues are in the various Labor Department functions?

MS. FORD: Yes. And the folks who actually participated in the compensation training -- that was done at a local, district office level, which will aid in further building those relationships on the ground.

COMMISSIONER ISHIMARU: That's great. Well, thanks to you and your colleagues at the Department of Labor. Thank the Secretary for me for the great work she's doing over there.

Ms. Martin, it's becoming increasingly apparent to me, thinking back on my conversation with Professor Siegel years ago, of our need to come up with additional guidance in the pregnancy area. What sorts of -- you know, if you had to advise us on what we should address, what are the major topics? What points should we try to clarify?

MS. MARTIN: Well, again, as many are saying today, I think that the interaction between the Amended ADA and the Pregnancy Discrimination Act is particularly important to address, both so that employers and employees understand the expansion of rights that have followed from the ADA Amendments as it regards pregnant women, but also, very importantly, so that the courts understand, since I think that, while there have been good decisions and bad decisions; there's definitely a troubling strain in the cases that seeks to define "similarly situated" very, very narrowly in looking to see whether employers are treating pregnant women the same as similarly situated employees. So I think that Commission guidance expressly addressing that, and how that comparison should be undertaken, is very important.

Relatedly, I think that it's very important that the Commission speak to how a live comparator is not always necessary in these cases in order to show -- in order to raise an inference of discrimination. So thus, again turning to the amended ADA, given that employers now have a duty to accommodate similarly situated employees, whether or not there is an individual in that particular workforce who has had that particular problem, and who has in fact been accommodated; the duty alone should support an inference of discrimination if the employer has failed to similarly treat the pregnant woman who has sought a similar accommodation.

I also think that, as I mentioned, disparate impact analysis is a place where courts have been inconsistent under the Pregnancy Discrimination Act, and I think it would be very useful for the Commission to set out additional guidance, walking through exactly how courts are supposed to apply disparate impact analysis here, since again there is an unfortunate thread in the decisions that suggests that the normal disparate impact rules somehow don't apply, because if it gets to a result that would require changing something like a leave policy, because that leave policy has a disparate impact on pregnant women, that that would be some per se preferential treatment that's prohibited under the Pregnancy Discrimination Act. And I don't think that there is anything in the Pregnancy Discrimination Act to support that conclusion, and of course there is a regulation indicating that inadequate leave policy may have a disparate impact. But further amplification of that principle could be very valuable.

COMMISSIONER ISHIMARU: Okay. Thank you. Madam Chair, let me close by thanking both Peggy and David for also testifying today. And David, let me just say that I've been impressed with the diversity of cases you've brought, covering all the various factors, and I think it's a tribute to your management that we are seeing a broader range of cases in this area being brought, and I hope to see that continuing into the future. Thank you, Madam Chair.

CHAIR BERRIEN: Thank you. Commissioner Barker?

COMMISSIONER BARKER: Thank you to all three of the panelists. This is such a good overview of all the laws that we're dealing with, and some of the problems with overlap and some of the issues that still need to be determined. I really don't have any questions, because you were so full of information. I guess my one concern is that as Peggy, you in particular, but also Ms. Martin pointed out, now with ADAAA, we need to look more and more toward medical conditions related to pregnancy, or that accompany certain pregnancies, that will entitle a woman to accommodations under the ADA.

I think we need to be careful to remind people that the Commission has not taken the position, as you pointed out, that pregnancy, in and of itself, is a disability. So that's something that I think we need to be careful the public doesn't get confused about, because it is a very confusing issue. Thank you very much.

CHAIR BERRIEN: Thank you, Commissioner. Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you. So first, thank you Legal Counsel Mastroianni and Ms. Martin for pointing out that this potential interaction between the ADA and the PDA has not, in fact, been adopted by at least two courts that have looked at it. So I picked my words very carefully when I asked whether it's not a risky legal proposition for an employer to act as if there isn't this obligation, because they might get a different court.

However, I think there's no doubt that, not only is there need for EEOC guidance, but since I have long ceased to be shocked by the incomparable ability of some courts to ignore plain language, even with guidance from the EEOC, I certainly think there might be additional efforts that need to be made in this area.

The second thing I want to say, just as -- you know, I feel like this is my ADA tip primer moment, and Legal Counsel Mastroianni referenced this sort of at the end, on association. I think it is important to note that, under the ADA, although there's no reasonable accommodation to take time off to care for someone else with a disability -- you only get reasonable accommodation to take care of yourself -- if your employer is not penalizing other people who are taking time off for other things -- going to a Major League Baseball game -- and does penalize someone for taking care of someone with a disability -- child, elder person, whatever -- that is a violation under the ADA.

So my question really goes to the issue of disparate impact. So, Legal Counsel Mastroianni, in her written testimony -- by the way, the written testimony here just was phenomenal. Just, thank you so much -- noted the regulation that Ms. Martin referenced, 29 CFR 1604.10(c), where the termination of an employee who is temporarily disabled is caused by an employment policy under which insufficient or no leave is available -- such a termination violates the Act if it has a disparate impact on employees of one sex and is not justified by business necessity. It's a very clear regulation/guidance statement.

In Ms. Feinberg's written testimony on behalf of AARP, she observes that family responsibility discrimination could, "present as disparate impact based on age or sex if an employer imposed unduly harsh penalties for failing to follow rules on getting approvals for absences that did not account for the periodic need to arrive a little late or leave a little early that often accompanies caregiving." So again, a disparate impact argument on age.

And Ms. Martin, your written testimony, at least, is a clarion call for revitalizing disparate impact theory under Title VII and PDA. As you note, quote, "disparate impact theory holds the potential to reshape work rules that'll harm pregnant women when alternative policies that would serve an employer's business needs equally well available."

Now, personally, I believe a disparate impact claim can logically be made on both age and sex. In fact, the courts in the U.K. have followed this with regard to sex, although the courts in the U.S. have not. So my question for the panel is, given our explicit regulation, I'm curious as to whether you believe it would be useful for the EEOC to attempt to rejuvenate disparate impact analysis in the U.S. courts, if the courts adopt the theory that I discussed before with Ms. Terman about interaction with PDA and ADA. That is, what work would a disparate impact analysis do in addition to that theory that would make us want to wade into that territory? So Ms. Martin, let me start with you.

MS. MARTIN: Well, as I said, I think that the ADA theory in some ways avoids the need to undertake the disparate impact work, which -- those are hard cases to build, and it would be a quicker step to get there just by saying that the duty to accommodate under the ADA extends to the Pregnancy Discrimination Act through the Pregnancy Discrimination Act's requirement of equal treatment.

That being said, I am not sure whether anything that might be reached by disparate impact analysis also would be reached under reasonable accommodation analysis. So I think reasonable accommodation analysis would cover a lot of what we think about and talk about when we talk about these issues, but I'm hesitant to say that it covers everything.

So I wouldn't want to give up one rather than the other, and I think that the principle that disparate impact analysis stands for and communicates is important. I think that the notion that antidiscrimination includes this obligation to amend rules that treat a protected class more harshly when there's no necessity for such a rule is a principle that should definitely be kept in the forefront of discussions, because it helps basically justify the accommodation obligations that we're talking about. It sets it in the clear antidiscrimination framework which we all understand Title VII to create, and I think that that's useful, analytically, for the courts and others.

COMMISSIONER FELDBLUM: Thank you. Legal Counsel Mastroianni's probably glad that my red light is on.


COMMISSIONER FELDBLUM: So she can respond if she wants to, but thank you, Madam Chair.

CHAIR BERRIEN: Okay. Hearing none, we will move on to Commissioner Lipnic.

COMMISSIONER LIPNIC: Thank you, Madam Chair. Well, actually, I want to follow up on Commissioner Feldblum's question, so --


COMMISSIONER LIPNIC: And actually, Peggy, this question is for you. I had raised this issue -- we had talked about this some weeks ago, about the associational clause under the ADA, and I was sort of speculating -- and mind you, don't hold me to any of what I might say, because I could change my mind on this – but I was speculating as to, was that really sort of the first caregiver enactment? It predates the FMLA, so my question to you is, 1) if you could sort of expand on what she had mentioned, what the associational clause does? 2) I'm curious, and Stuart may want to comment on this, too, to what extent, when you were developing the caregiver guidance, did you look at the associational clause? Because there's only one example of it, at the end of the guidance, that's used. And then 3) have you given any thought to, or do you think that sort of the legal landscape on that is changing somewhat, under the Amended ADA and more focus on leave?

MS. MASTROIANNI: May I start with your last question?

COMMISSIONER LIPNIC: All of the above, in any order.

MS. MASTROIANNI: It's not clear to me that the changes brought about by the ADA Amendments Act change much under the association provision. As a practical matter, the association provision, in the few cases that we've seen, has involved people who have very, very serious caregiving responsibilities for people with very serious disabilities. So I don't see a lot of impact there, unless I'm completely missing something here.

Now, in terms of how the association provision plays out, it basically says that an employee -- and we're thinking, now, employee who doesn't have a disability -- employee cannot be discriminated against because of his or her association with someone with a disability. It could be a child, a parent, whatever. We have seen some cases involving employees of hospitals, one who was getting -- she was covered by the plan, her very sick husband was covered by the hospital's plan, and when they started engaging in some very, somewhat experimental treatments, but very expensive treatments to address his condition, she was called in and asked, had she thought instead of sending her husband to a hospice?

So that's one kind of association discrimination. But we also, in writing the caregiver guidance, when we got to ADA, that's the hook. That is the hook for ADA purposes. It was the Title VII hook that's a little bit more complicated to get to, but it seems that ADA very, very clearly covers caregivers of people with disabilities.

COMMISSIONER LIPNIC: And just in terms of disparate treatment, right?

MS. MASTROIANNI: Just in terms of disparate treatment, yes.

COMMISSIONER LIPNIC: So, but it would not allow -- would or would not allow for a reasonable accommodation under that?

MS. MASTROIANNI: No. The association provision under the ADA does not -- the employee is not entitled to reasonable accommodation. And that's a question we get a lot. A lot of people think they are, they go to court, they find out they're not.

COMMISSIONER LIPNIC: Okay. Thank you for that. Ms. Ford, I wanted to ask you -- and thank you for being here. In terms of the changes under the FLSA -- and I'm interested in -- you said you had gotten a lot of comments about implementing the amended FLSA. I'm wondering what the nature of the comments were you've gotten from small business, in particular, given Commissioner Barker's work on our small business task force, and their concerns in particular; and I'm particularly interested in not so much the time aspect, but being able to provide a room for --

MS. FORD: Right. So they are going to be cataloguing the comments at some point and then providing them as actual guidance, hopefully putting them on the website. I'm not sure that our technology is as good as yours here, but we're working on it. I'm impressed.

COMMISSIONER LIPNIC: That is high praise.


MS. FORD: But there were a lot of comments around space, and how do you create appropriate space, particularly in places where there may not usually be space. So in mobile places, so folks who are driving; folks who have small kiosks, for example; folks who have restaurants where the employees are typically mobile. So that tended to be a lot of the comments. I'm not sure that they were catalogued by size of business, but I can certainly check on that and see if that information is available.

COMMISSIONER LIPNIC: And then switching to the time aspect, what's the nature of the concerns that you've heard about the time? I mean, it is the law, now, but in terms of allowing for that time?

MS. FORD: Most of the comments were actually about space. And maybe -- and I'm completely speculating at this point, but maybe it's because there's such a -- it's a defined amount of time that someone's actually going to be providing someone with the opportunity to take a break to express milk, since it's only up until the child is actually one. And presumably -- this won't be true in lots of cases, but for low-wage workers, they've taken some time off for maternity leave, so it's a very defined, shorter period of time that they have to provide that. So there weren't a lot of comments in terms of the amount of time that someone needed to take to take a break, but again that'll be one of the areas that'll be catalogued in the comments.

COMMISSIONER LIPNIC: Okay. I see my time has expired. Thank you all very much.

CHAIR BERRIEN: Thank you. I would like to echo everyone's comments about the quality and the usefulness of the written testimony, and the testimony we're hearing today. First, Ms. Ford, I'd like to ask you, how do you expect the FMLA surveys to help inform your enforcement efforts at the Wage and Hour Division? And what do you think it might do in terms of helping us to enforce the laws we're responsible for enforcing?

MS. FORD: So, the surveys this year -- there will be two surveys. One will be for employees and one will be for employers, in part because we want to see how it is that employees are using FMLA leave, but we're also interested in figuring out how employers, such as the Hypertherm company in New England, is experiencing their use of FMLA leave.

The other thing that's going to happen this year, which will happen for the first time, is that the Bureau of Labor Statistics is doing an additional survey, a time use survey, that will get beyond FMLA leave to talk about how it is that people are using, for example, vacation leave, sick leave, things that are not necessarily FMLA leave, to balance their work/life needs. And since ultimately that's what the FMLA is trying to get at, how it is that workers balance their life at work with their life at home and with their families; we need to know about the intersection between FMLA leave, which is unpaid, and the other types of leave that employees might have access to.

CHAIR BERRIEN: And do you have a sense of timing on when that information, or those surveys will be conducted?

MS. FORD: I don't know the timing. I know that we're very close to being able to release it, so hopefully it will be shortly.

CHAIR BERRIEN: Thank you. Ms. Martin, we talked a lot earlier about your testimony, and particularly the ADA/PDA interaction. And your written testimony deals a lot with disparate impact theory. I wonder if you could say something about disparate treatment and trends in the courts and judicial decisions concerning disparate treatment cases, particularly since in a great deal of the testimony we are hearing that disparate treatment has also not vanished in terms of pregnancy discrimination?

MS. MARTIN: Sure. I mean, I think that it's the case that, in theory, disparate treatment is the easier, sort of clearer, law to apply. I do think, as I mentioned briefly, that there are challenges sometimes in identifying a similarly situated comparator that makes the disparate treatment clear. And I think in some instances courts have put inappropriate requirements on what such a comparator must look like. So, has required that a comparator have a very, very similar impairment to whatever impairment the pregnant woman has, or has -- if it's an on-job injury versus off-the-job injury question, that the comparator has to have been injured off the job.

So I think that one of the issues in enforcing the disparate treatment protection of the Pregnancy Discrimination Act is getting away from the idea that you have to have an exact twin who has been treated better in the workplace in order to make such a case.

And there are certainly courts that actually speak to this issue and say that the live comparator is only one among many methods of showing disparate treatment; that statements that show stereotypes about pregnant women and mothers is a way to do it, that an employer departing from usual procedures in treatment of a pregnant woman or a caregiving woman is another way to raise an inference of discrimination. But I think that's one of the ongoing challenges in litigating the disparate treatment prong of the Pregnancy Discrimination Act.

CHAIR BERRIEN: General Counsel Lopez alluded to -- or mentioned a case he had been involved in in the past, where the employer's justification was that maintaining a pregnant employee in a job could endanger her or the passengers who she was responsible for carrying. And when I was in private practice, I had a similar experience where an employer justified the removal of an employee during pregnancy based on concerns about her safety and health and potentially -- this was before Johnson Controls was decided -- the health of the child she was carrying.

To what extent is that, post-Johnson Controls, still a part of the landscape for pregnant workers?

MS. MARTIN: I think it still certainly is an issue that pregnant women are sometimes forced onto unpaid leave or taken off the job when they don't want to be, under a theory that they need to be protected, and perhaps either implicitly or explicitly that the child that they're carrying needs to be protected. And I think that is something that it's important to keep in mind when we're talking about the need to accommodate through light duty or through job modifications in some situations under the law; that that doesn't suggest that all pregnant women need such modifications and that an employer should assume that the answer, when you find out an employee is pregnant, is to change their job duties and to place them into a different role, regardless of whether they have ever sought such a change, and regardless of whether their particular physical condition requires such a change.

As Commissioner Barker pointed out, pregnancy is not per se a disability, either under law or in fact. So I think that that is definitely an important element as well.

CHAIR BERRIEN: Thank you. And thank you again to this entire panel for your testimony, and your full statements will be part of the record. Thank you.

We'll call up our final panel of witnesses.

CHAIR BERRIEN: I'd like to thank and welcome the final panel of witnesses. This panel is entitled, The Way Forward: Implications for the Future. And for this, we are turning to two people who have had a profound impact over many years in working on issues that we're talking about today, as others have alluded to, who have really pioneered this work in many, many ways. So we're very, very fortunate to have people who we believe are really giants of this work, and really women's rights work and work on behalf of working families. So thank you for being here.

We'll first hear from Judith Lichtman, who is Senior Advisor to the National Partnership for Women and Families. That doesn't do justice to her very long career, but we will move on to hear from her, and that will make it complete. We'll also hear from Joan Williams, distinguished Professor of Law from the University of California Hastings Foundation Chair, and Director of the Center for WorkLife Law. And we'll hear from you in that order. Thank you.

MS. LICHTMAN: Thank you so much. And we are so pleased that the Commission has convened this meeting, and that each of you have provided the kind of leadership you have to attend to this complicated, persistent problem of discrimination against pregnant women and caregivers. And it deserves a coordinated, comprehensive response that strengthens the enforcement of existing laws. And if I had anything to say in these five minutes, I would repeat that sentence once again, and probably will in conclusion.

We urge the administration to create a multi-agency task force to address critical gaps in research, in outreach and education and policy development, and most especially in enforcement. The White House should lead this effort in close coordination with you, the EEOC, if for no other reason because the Commission's central role in enforcing the critical protections of Title VII, and certainly the ADA and ADAAA.

The task force should also include representatives from the Department of Labor -- and we're thrilled that Ms. Ford was here today -- the Department of Justice, and importantly the Office of Personnel Management. We urge EEOC to provide thorough guidance in best practices, even amplifying your previous hard work to avoid unlawful discrimination against pregnant workers and caregivers in line with existing legal protections provided by Title VII, the Americans with Disability Act, the ADA, and the combination thereof.

Investigators should be trained to identify this kind of discrimination, and EEOC should utilize its authority to file Commissioners' Charges. And we were very happy to hear about all the work that is ongoing. The Commission should develop systemic impact litigation to protect the most vulnerable workers, particularly those in low-wage jobs. And EEOC should develop Title VII disparate treatment and impact cases to enforce recent caregiving guidance. It may be that repetition will make it so.

At the appellate level, the Commission should share its subject matter expertise with the courts, participating in amicus briefs in which you are not parties. The Department of Labor's Office of Federal Contract Compliance should include specific regulations and guidance on these issues, in its sex discrimination regulations, and in the Federal Contract Compliance Manual. OFCCP should train investigators to identify discrimination against pregnant workers and caregivers, as well as violations of FMLA.

The Department of Labor's Wage and Hour Division receives thousands of FMLA complaints each year, as we've heard, and the number has grown significantly, I fear. Wage and Hour should dedicate resources to FMLA enforcement, including systemic impact litigation. The updated FMLA survey should be implemented, and we can't wait for that to happen, and we welcome your question, Madam Chair. And the data gathered from workers and employers should be analyzed carefully to assess outreach, education, policy, and enforcement.

We applaud the recent efforts of Secretary Solis and the First Lady to raise awareness of FMLA's military leave provisions, and we as well urge Wage and Hour to enforce the right for nursing mothers to take breaks. Many hourly workers remain unaware of this new right, and Wage and Hour should engage in outreach, education and enforcement efforts to ensure the implementation of this.

The Justice Department, as you all know, has jurisdiction as well, and a coordinated approach would call upon them and their leadership to act as part of a coordinated team. The Office of Personnel Management ought to be a leader: a great employer, a model employer, implementing family friendly protections, for example, by providing paid parental leave for federal workers.

Indeed, increased access to paid sick days and paid family and medical leave in both the public and private sectors would provide workers with the ability to care for themselves and family members. Working women and caregivers depend on the guarantee of equal opportunity in the workplace, and no worker ought to be in the position to risk adverse treatment, lost income, or loss of a job due to pregnancy, childbirth, or family caregiving responsibilities.

And finally, we urge the administration to take decisive, coordinated action to put an end to the pernicious discrimination that threatens the economic security of our nation's families. I thank you.

CHAIR BERRIEN: Thank you so much. And finally, Professor Williams, thank you for being here, making the very long trek. And we look forward to your testimony.

MS. WILLIAMS: Thank you. I'm delighted to be here, and thank you for inviting me to discuss the way forward. I wanted first just to second a few of the important points that have been made by others. First of all, that caregiving discrimination involving elder care often shows up as age discrimination. Second, that better outreach is really sorely needed for employers. And third, that flexibility stigma is an important emerging area. Laurie Rudman's study that Steve Benard referred to is one of several that's coming out in a special edition of the journal of social issues, so we'll have a lot more social science on that soon.

I'm going to focus my oral testimony on three points. First, I want to highlight the difference between caregiving discrimination and workplace flexibility. Workplace flexibility refers to the need for employers to offer flexible work schedules, short-term leaves, telecommuting; really, a standard array of programs to reflect the fact that workers today typically have caregiving responsibilities, not a wife at home taking care of everything else.

Caregiver discrimination is something really very different. It stems from descriptive bias that occurs when employers assume that adults with caregiving responsibilities are no longer committed to their jobs, and also prescriptive bias when employers assume that fathers should be breadwinners and mothers should be homemakers. Studies show that caregiving discrimination is the strongest form of gender discrimination by far, and I think it's really important not to conflate these two quite different topics.

The Center for WorkLife Law has run a caregiver hotline for over a decade, and we have a database of over 3,000 caregiver discrimination cases. What these show is that employers still do not understand what their duties are in this arena. The most dramatic examples are the steady stream of stories, both through the hotline and the case law, where pregnant women are given a choice between having an abortion or getting fired. And these are still amazingly common. As I talked both to plaintiffs and to defense-side lawyers, both urged me to tell you that more outreach is needed in this arena.

My second point is that caregiver discrimination law, which has always been complicated, is now even more complicated because of the interactions of the ADAAA and the Pregnancy Discrimination Act. The ADAAA expands the definition of disability in ways that have dramatic implications for pregnant workers. Before 2008, pregnancy was excluded from coverage because -- for a variety of reasons, one of which is that it's temporary. And pregnancy -- and I think Commissioner Barker's point is an important one -- is not per se a disability, either in fact or in law.

That said, many women's doctors order restrictions, either to avoid injury to the pregnant woman or to avoid injury to her ability to deliver a healthy child. Lifting restrictions are really, really common. I believe, actually, that lifting restrictions today are playing the same role in pushing women out of the workplace that high school education requirements played in pushing African-Americans out of the workplace some decades ago. These cases -- there are more than 100 cases in our database, and that's no doubt an undercount.

Lifting restrictions are typically offered to avoid back injuries, because pregnant women's joints soften and therefore they're particularly at risk of back injuries. And I urge the EEOC to clarify that if a pregnant woman's doctor, in response to conditions related to her pregnancy and her workplace, orders lifting restrictions, she's entitled to accommodation under the ADAAA. Employers are not entitled to second-guess a doctor's orders in any context other than pregnancy, and so the PDA tells us pregnant women can't be treated any differently.

The second common reason that pregnant women's doctors order work restrictions is in response to an increased risk of miscarriage or pre-term birth. Again, the ADAAA gives women a right to accommodation when they have an impairment in their ability to perform a major life activity. And that now -- reproductive functions are explicitly included.

So if a pregnant woman's doctor, again, after an individualized assessment, orders a restriction in order to protect her ability to have a full-term, healthy baby, that restriction, too, is covered by the ADAAA. Again, any other worker, in any other context, would be required to an accommodation, and the PDA requires that pregnant women simply be treated the same. Now, of course, there are defenses. There are always going to be defenses. We're familiar with defenses under the ADA.

But the second point is that the EEOC should consider guidance to clarify the relationship between the ADAAA and the PDA. I think that's really sorely needed.

The third point is that I urge the EEOC to issue guidance on spelling out what constitutes stereotyping evidence, and to correct the misuse of an over-reliance on comparator evidence in caregiving cases.

Title VII, as we all know, requires a plaintiff to prove discrimination because of sex. It does not refer to comparators. And using a comparator is just one way of proving a case. We've heard several other mentioned today. But some courts and defense lawyers are now interpreting the caregiver -- that comparator requirement basically to preclude suits unless a plaintiff can identify a similarly situated comparator. This makes no sense when you're dealing with issues concerning pregnancy and breastfeeding, where there simply are no comparators by definition. And some of the courts' opinions are startling and, frankly, strange. This flawed use of comparator evidence is particularly shocking in cases where there was very open evidence of gender stereotyping of sorts that Steve Benard and others have documented, and courts completely ignore the evidence of gender stereotyping and dismiss the case at summary judgment for lack of a comparator.

This is really inconsistent both with Supreme Court precedent and with the clear language of the Pregnancy Discrimination Act and Title VII, and so I really urge the EEOC to issue guidance to remind investigators and employers that comparator evidence is not a threshold requirement of Title VII, and to clarify the kinds of statements that do constitute bias based on -- gender bias -- in this context. Thank you very much.

CHAIR BERRIEN: Thank you, Professor Williams. And we'll begin with questions by Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Well thank you, Madam Chair. And I want to thank the panelists. Really, as I was sitting here it brought back a lot of years. When I first started doing civil rights work almost 30 years ago, I worked for the House Civil Rights Subcommittee, and it was chaired by Don Edwards of California. And I remember, early on in my tenure there, gender issues came up and I was counseled, "Well, if you really want to know the answer, you call Judy Lichtman." And so I did, and she has provided wise advice and counsel over many years. And the National Partnership is truly a leader, and stole one of my people away from me during the course of my tenure here, which --




COMMISSIONER ISHIMARU: But I'm delighted to have Judy here. And Joan Williams I knew before she was Joan Williams -


COMMISSIONER ISHIMARU: -- and before she did this groundbreaking work that she's done now for many years. It also goes back to the subcommittee, where her husband and I shared an office, a cozy little space on Capitol Hill, for many years. And seeing Joan's work develop over the years has been very interesting, both on a professional and a personal level, as I was sharing with my wife as we were making lunches today before school that both Joan and Judy were coming today to testify, and wanted to thank both of you for your help over the years and helping us develop how the EEOC can better play in this area.

You know, one of the conundrums for me, I think, in the whole issue of pregnancy discrimination and the persistence of this, on so many levels, all over the country, is why? You know, why 35 years after the PDA -- or whatever the number is, right? Why does this continue, and to the levels that it does? And part of my theory is that, because it's a temporary situation; it goes over a course of months, because people have other life issues that they're dealing with; that pregnancy discrimination is one of those things that they just fall off, because people are dealing with a whole range of issues during the course of their pregnancy, which has limited our ability as a law enforcement agency to actually deal with it.

And, you know, we talk about more outreach, and I think that's important. But why have we missed the boat over all these years? Why has this continued to grow and permeate, rather than to sort of shrink and not fester? It's been a puzzle to me why this is so. And I don't know if you have thoughts on -- where do you bring this going forward?

MS. WILLIAMS: I mean, I do have thoughts. I think that the stereotypes are very abiding. They're very strong, and they're very much unexamined. One of the things that shocked me is -- I spent my time in the last several weeks reading all these cases again -- is that sometimes the courts, very explicitly, adopt gender stereotypes related to pregnancy and caregiving in dismissing the stereotyping evidence and insisting on an almost twin, nearly identical comparator in order to dismiss these cases at summary judgment.

One dramatic example is Judge Posner's language in the Troupe case, a very famous pregnancy discrimination case, where he says, without any evidence, that this employee was more costly to the employer and perhaps that was why the employer got rid of her. There was no evidence at all in that, and he was supposed to be drawing every inference in favor of the non-moving party. So when you have a prominent federal judge making a shockingly stereotypical statement with no evidence; it's a difficult -- people's common sense is simply flawed, that's the problem.

MS. LICHTMAN: I certainly echo what Joan just said. I think the pervasiveness of gender stereotypes, not only about pregnancy discrimination but probably especially pregnancy discrimination, but caregiving, is so -- it's so embedded in the way we approach men and women workers, and the way our society credits caregiving and family responsibilities. And to get at that core, the fact that we're not further along -- not only the PDA of 35 years ago, which is a little bit shocking, but Phillips v. Martin Marietta that the Chair talked about, which was in some ways, I think, the first time the Supreme Court ever tackled sex discrimination and Title VII. And where have we come? It is -- and so I think it puts a huge burden on all of us. I don't think there's anybody who gets left out of the equation of needing to figure out, what does that mean, outreach? What does that mean, public education? Those are sort of nicety-nice words, but what are our real obligations to change an ingrained paradigm?

COMMISSIONER ISHIMARU: Thank you very much. I thank the Chair.

CHAIR BERRIEN: Thank you. Commissioner Barker?

COMMISSIONER BARKER: (Off-mic comments.) -- coming down and sharing their expertise -- oh, thank you, I forgot to do that -- with us today, so many years of experience, and with the development of these issues. And I really don't have any questions other than just to express my appreciation for your insights. Thank you.

CHAIR BERRIEN: Thank you. Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you. So I was also doing some math up here, and I said 18 --

MS. LICHTMAN:: I don't know why this is so much fun for all of you to do the math.


COMMISSIONER FELDBLUM: Well, you can see how bad I am at math, that I said "Okay, so 18 years ago last month, I worked at the Women's Legal Defense" -- and I said "No, that can't be." No, 28 years ago last month, I showed up as a bright-eyed, natural bushy-haired or whatever law student to do a project on women and health within the Women's Legal Defense fund. I think we see how far we have come in so many ways, in terms of moving a discourse in public policy, but obviously, how far we have to go.

So I have two comments. First is about guidance. Last June, June 2011, we had a hearing on leave as a reasonable accommodation under the ADA that Commissioner Lipnic helped put together. We have been working very hard as a Commission since then on revamping and revitalizing our guidance on leave, modified work schedules and reduced hours under the ADA. I have great hopes that this will be coming out shortly. I think based on the conversation here today, obviously we should be looking at interaction between ADA, PDA, FMLA in these areas.

Now, this does not substitute for the broader guidance that you are asking for on PDA and Title VII that would address issues like the comparator point, the gender stereotyping point. But I did want to say, for the record, that we have been working on this. This is in the later stages of development, and I hope will be able to be seen soon.

Second, I would strongly encourage you and all your colleagues to read the draft strategic plan that is currently posted on our website and that the Commission will vote on shortly. That plan requires the Commission to develop and vote by September 2012 on an enforcement plan that will establish priorities for the Commission and that will very explicitly integrate our work in the federal sector, dealing with federal employees -- so for your point, Judy, of the federal government as a model employer -- and our public education work.

Now, these priorities will be developed under the assumption of flat funding for the agency. We would love it if Congress gave us the extra 14 million dollars that the President's budget, released this past Monday, called for for the EEOC, but we are not planning on that money as we develop this plan. So, for example, among the issues affecting women and other workers today, I encourage you and your colleagues to focus on what you think we should be focusing on, and to get that to us before September 2012.

So I hope you will consider this panel just the beginning, not the end, of your involvement with us, both as we set the enforcement priorities of this agency and as we develop guidance. Thank you so much, both of you, for your testimony.

MS. LICHTMAN: Thank you.

CHAIR BERRIEN: Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you, Madam Chair. And thank you both to our witnesses, and I'll second the comments of my colleagues thanking you both for all of your work over the years. For those of you who have not looked at it, I thought, Joan Williams, your study about union grievances and the reasons why people are disciplined or fired in those contexts is a really seminal piece of work.

MS. WILLIAMS: Thank you.

COMMISSIONER LIPNIC: And I'll also mention that Judy Lichtman gave me a piece of advice 12 years ago, and I've tried very hard to live up to it for many years. So I'll fill you in on that later.


COMMISSIONER LIPNIC: I had a couple specific questions about your testimony. And this is -- and I'd like you, actually, both to comment on this. Judy, this is in your testimony, and it relates back to our prior panel, and this is about the issue of light duty. And it strikes me that there's some tension here, so I want to read in your testimony.

"Some employers still seek to prohibit pregnant women from holding certain positions in order to protect the best interests of the child. Some employers maintain fetal protection policies which limit the ability of pregnant women to work, despite their ability to do so. For example, some employers automatically place pregnant women on light duty, despite their ability to continue working."

Okay. A paragraph later, you talk about "Employers frequently force their employees to take leave, or unjustly demote or discharge pregnant workers after learning they are pregnant. For example, the Detroit Police Department required pregnant officers to take sick leave, which was often unpaid. Pregnant officers were denied the right to light duty, excluded from testing for promotions, and denied certain benefits."

And it seems to me that those two statements are a bit in tension, so I wonder if you could elaborate on that.

MS. LICHTMAN: I think that's right. And I think those are the realities on the ground. Both things happen. Women who are pregnant and can work and carry whatever is the full load of the moment are often forced into lighter or ancillary positions. And women who need the lighter work assignment are often denied it. And both things happen. And so the tension, which you're absolutely right to note, is figuring out, both as a public policy matter and as a litigation strategy, how do you fashion a policy that addresses both kinds of discrimination, if you will, because they both happen. And because we don't -- we women don't come packaged in the stereotypic ways that sometimes the law addresses our issues, you get the exact tension that our testimony reflects.

MS. WILLIAMS: I mean, it's sort of similar to abortion. Women should have access to abortions when they need them. They should never be forced to choose between their job and getting an abortion. I mean, they're two sides of the same coin, the same thing with lifting restrictions. Employers sometimes push women who don't need or want lifting restrictions into light duty or a forced leave. That is a violation of the law. And -- I was actually flipping through my testimony -- employers sometimes deny light duty to pregnant women in contexts where they've given light duty to somebody who fell off his mother's porch while he was fixing it, or who -- it wasn't a hang gliding accident, but it was something similar. So employers give light duty for any reason or no reason, almost, except for pregnancy. That's just sex discrimination.

MS. LICHTMAN: And sometimes there are comparators in those instances.

MS. WILLIAMS: Well, and then you have courts saying that these are not proper -- these men are not proper comparators because they are covered by the ADA. But the ADA has redefined what constitutes an employer's duty, and so of course they're proper comparators, and so that's an example of why I think guidance from the Commission could play such an important role.

COMMISSIONER LIPNIC: And I wanted to ask you one other question related to the comparator issue. And so if -- you know, we can't just assume that there's discrimination based on sex, right? The plaintiff is going to have to carry their burden, right? So my question is, without a comparator, then what would you suggest -- and without direct evidence, what would you suggest that the plaintiff needs to do to carry her burden in the case?

MS. WILLIAMS: There are many different ways, as we both know as employment lawyers, to prove a discrimination case. Finding a similarly situated X is one. One issue is that courts often insist that the comparator be a similarly situated man, for example. A comparator in a caregiving case is very often the same woman before she had kids, her treatment before she had kids. Often another comparator is the treatment of women with children and the treatment of women without children. You heard Steve Benard's study. There's a dramatic difference. So partly it's, who is a proper comparator?

Another example is a case involving caregiver discrimination against men, and the court said, "Well," -- because this man was openly discriminated against, there were very open stereotypical statements. The court said "Well, the person who was promoted was a man, so clearly there was no comparator, there was no gender discrimination." And that really segues into the second theme.

I have in the testimony a lot of cases in which you have really open discrimination, discriminatory statements, stereotypical statements. One supervisor said to a pregnant -- actually, this is a woman who just had a miscarriage. "Get out of your g-d d--n bed and call in your accounts if you want to keep your f-ing job." That case, if I remember, was dismissed on summary judgment with a judgment for the employer on the grounds of no comparator. That was very clear evidence which, if you take the inferences in favor of the non-moving party; that's evidence of gender discrimination, even if you don't have a comparator. So one of the dramatic things about these cases is that, although nobody says, "This is not a suitable job for a woman," unfortunately -- this is the need for outreach -- people often say, "This is not a suitable job for a mother." That is evidence of discrimination, even in the absence of a comparator. Doesn't that make sense?

COMMISSIONER LIPNIC: Thank you both very much for being here.

CHAIR BERRIEN: Thank you. In addition to the testimony that you've submitted in the record, about three and a half years ago the National Partnership did a study of the Pregnancy Discrimination Act enforcement over 30 years, and it has a tremendous amount of very, very helpful analysis of, among other things, EEOC charge data. And one of the things that was reported there is, broadly, that the number of charges of pregnancy discrimination does not correlate exactly with the population of the various states. So there are some large states, like California, where there were fewer pregnancy discrimination charges filed than a number of smaller states, such as Indiana or the Commonwealth of Puerto Rico. So in addition to everything else that you've shared with us today, I think it is worth taking another look at some of the things that were highlighted there.

The testimony we heard earlier from Dr. Benard and your testimony really flags something for me, which is, I think the reason we search so for understanding why this happens is because we recognize that whatever else is true, the first three-plus decades of Pregnancy Discrimination Act enforcement, there are still things we see that we could have seen before the act was passed: people literally being sent home when they come to work and their pregnancy is visible, or people literally being told that a job is not suitable for a woman with young children.

And so, I would like to ask both of you, what more -- because you've obviously both advocated and spoken widely about this issue. What more can be done, both to educate workers and job applicants about their rights, and employers about their responsibilities under this law that has been in effect for a very, very long time?

MS. LICHTMAN: It's a fair question. Without trying to appear too facile, it seems to me that one of the most under-utilized strategies of many government agencies is the public affairs function. So to the extent that yet another guidance -- which we will all thrive on, as policy wonks and enforcers -- exists and it drops into a black hole, as it were, that nobody ever sees and nobody knows about and isn't made real with some of these outrageous tales that exist in real life and in these courtrooms, it's hard to get to changing some of these stereotypes. So I would say a real investment in a public affairs strategy that's very sophisticated, very new media, that -- I am the last person in the world to advise anybody of that.


MS. LICHTMAN: -- and that --

MS. WILLIAMS: That's why you invited us young'uns.

MS. LICHTMAN: That's right. And that puts real faces and stories and people up front, that will give life to the guidance, give life to the enforcement. To the extent that cases get filed and they're important cases, that they be described -- that a real investment be made to talk to people.

MS. WILLIAMS: I actually think the guidance is phenomenally important.


MS. WILLIAMS: And I speak as someone who now lives 3,000 miles away. The importance of the guidance, of course, is to give investigators guidance, that is the first step. But the importance of the guidance is that it allows you folks to reach defense-side lawyers.

And you know, plaintiff's lawyers are important. Defense-side lawyers are the key to changing the workplace. And what the guidance does is, focuses the attention of defense-side lawyers that this is a new area of law. This is an area of potential liability for their clients that their clients need a heads-up on. And very frankly, it gives defense-side lawyers a business development opportunity which they embrace and run with. The guidance is chiefly important because it gets your message to defense-side lawyers. The guidance is dazzlingly important.

And I saw that, because we've been doing this for 12 years, and it was a little bit of a pipe dream until the guidance got the message to defense-side lawyers, and then all of a sudden it was real. You guys have tremendous power.

CHAIR BERRIEN: Thank you both for those ideas. You know, as I think about what has changed, certainly the fact that at least one publication that I can think of does an annual issue dedicated to highlighting employers that have exemplary practices in terms of their family-friendly policies does suggest that employers' investment in this; the kind of things that we heard about earlier from Ms. Ilukowicz, really are getting more attention. And the potential for there to be sort of a competitive value and benefit to having family-friendly policies is on the horizon, and I think your suggestions are helpful as we think about, but what more can we do on the other side to show the things that are clearly outside the bounds of the law and the consequences in those cases, in the hope ultimately of deterring the future acts of discrimination.

MS. LICHTMAN: Can I add one thing? It isn't gratuitous, I promise you. You may be sitting, the five of you, in the best EEOC Commission ever. I'm serious. If I think back -- and unfortunately for me, I do have some perspective on former ones. So you have a fabulous opportunity with the five of you, not only with the public and the defense part -- God knows Joan is right about that -- but within the government, to take a leadership position and to turn this very hard ship to turn, and to use your moment in trying to figure out how to get this Administration that is in place today, with the five of you and your leadership, to really make a difference internally. It's an exciting time, really. And I think it's wonderful to see the five of you up here.

MS. WILLIAMS: And the reason that's so important is because what is killing women today is motherhood. And that's just indefensible. In a country that is so committed to family values, that is indefensible.

MS. LICHTMAN: My friendly amendment is "motherhood and caregiving." I get Benard's research, and it's important, but it's meant as a friendly amendment.

CHAIR BERRIEN: I want to thank you both, and we will turn to what I think will be very brief closing remarks by members of the Commission, beginning with Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Well thank you, Madam Chair. I want to again thank you for calling today's meeting. I found it very helpful in raising a whole range of issues. And it got me to thinking about, what do we do going forward? And certainly one thing that's become clear to me is that we address the interaction of the PDA and the ADA. We may need to elaborate on our previous statements about pregnancy and disability. The passage of the ADA Amendments Act may mean that more women, at some point in their pregnancy, will meet the definition of an ADA disability. The passage of the ADA Amendments Act may also mean that, under the PDA, more pregnant women may be entitled to workplace modifications because their comparator employees, those employees similarly able or unable to work, are entitled to ADA accommodations.

In any future policy documents, we must also address the issue of who is the correct comparator, and we need to reaffirm disparate impact as a crucial tool in enforcing the PDA. And as I talked about with Ms. -- I'm blanking out on her name, from the Department of Labor --



COMMISSIONER ISHIMARU: -- Ms. Ford from the Department of Labor; it is truly important that we maintain our cooperation and grow that with the Department of Labor and other government agencies, and how we coordinate our efforts here at the EEOC and across the government to deal with these issues.

And finally, for us at the EEOC, we need to make sure that the enforcement of the laws on behalf of pregnant women and caregivers must be undertaken with the goal of advancing the law writ large, and its protections as having as broad an impact as possible throughout smart and strategic choices. And I think as Commissioner Feldblum pointed out, we will be dealing with our strategic plan soon, and I think that really will provide us with a vehicle to start to address strategy and how to move forward in the future. So that should be an interesting meeting.

Finally, let me again thank the panelists, but I really do want to thank the staff. Antoinette Eates, who's been with me since day one. Sharon Alexander on the Chair's staff, who used to be with me. And I notice that Sharon Tejani, who was stolen away by Judy's group many years ago, was on my staff during the time of the 2007 guidance that we came out with under a different Commission. And I think it's testament to the current body, but also to the former body, that we were able to get out guidance at a very different political time, and how so many of my colleagues -- Leslie Silverman and Cari Dominguez and Naomi Earp, Chris Griffin -- understood or were dealing with issues of caregiving responsibilities, and understood how important that was. And I am delighted, on a personal level, that this has gone on with my new colleagues here. And I think I am very excited about looking forward to the work we can do. So Madam Chair, again, my thanks to you for calling the meeting.

CHAIR BERRIEN: Thank you, Commissioner. Commissioner Barker?

COMMISSIONER BARKER: Thank you. And my thanks again, Madam Chair, and to all the staff members who worked so hard to pull together a really terrific panel of experts in this area. You know, on MSNBC -- which believe it or not I do watch, Stuart, you know, but only Morning Joe.


COMMISSIONER BARKER: They always end by "What have you learned?" And I feel like this is a "What have you learned?" kind of meeting. And there have been a lot of issues talked about today. A lot of them are sort of new, what's coming up in the future, what's developing, what could be developing, what we'd like, what are the complications? But what I take away from today is the real fundamentals. That is disturbing to me. And that is that this many years after the Pregnancy Discrimination Act was passed, we still apparently have employers who don't understand the basics. I mean, forget about all the nuances. My concern is the basics. If we have a single employer out there who does not understand that you cannot fire a woman because she is pregnant, period, then we are failing as a Commission. And I don't think we approach this problem through enforcement, David, as much as your efforts attempt that. You know, enforcement is an occasional case that involves a lot of resources, and some years later we get a result. But I think that, fundamentally, as a Commission, we need to look at how we're expending our resources. Are we getting the message out on the fundamental issues? And you know, if we have employers that do not understand something as basic as that, then we're somehow not reaching those people. And like I said, lawsuits are one thing, press releases are another thing, guidance another things. But reality is, press releases, by and large, are seen by large employers who are watching the issues and have the lawyers, the legal staffs. Same with guidances, those are read by lawyers. The average businessperson is not going into our website and reading the details of our guidances. Not that they don't serve a purpose, but, you know, the fundamental question, to me, is, what do we need to do from the standpoint of education and outreach, which is our first and primary mission? What do we need to do that we're not doing to educate employers on something as fundamental as the illegality of firing someone because she is pregnant. So, thank you.

CHAIR BERRIEN: Thank you Commissioner. Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you. Thank you Madam Chair for calling this meeting. Thank you to your staff and Commissioner Ishimaru's for putting it together. And thank you, Judy Lichtman, for noting to us that we really have a moment here that we need to be taking advantage of. And in that regard, I want to say that I think we are very aware of that. I think that the draft strategic enforcement plan that's been posted, as well as the final one, will indicate that. I strongly encourage people, once the date for the meeting that we will be voting on that plan is noticed, to show up to the meeting. I think it's very important to have a full room, not a bare one, when we are talking about where we plan to go over the next four years in this strategic plan.

In addition, I think you'll see in that plan that we are very focused on the need to do guidance, to do litigation, and to do adjudication in the federal sector on areas of priority, that that's the way we will make an impact. Guidance, litigation, and adjudication in the federal sector. And with each of those, to make sure that there is then exposure, that it does get out. So we have a performance measure to have a social media plan, et cetera. Okay? So education, as you can see from the draft plan, is the second strategic objective that we have.

So in that regard, this may be a lost cause but I'm going to make it anyway. I started tweeting six months ago. In fact, I do Twitter so much that I had to promise my Chief of Staff, Sharon Masling, two days ago that I would start tracking how much I'm on Twitter, the way you track for Weight Watchers.


COMMISSIONER FELDBLUM: Because she thinks I'm spending way too much time. But, be that as it may, for those of you who have not taken the plunge, I would really encourage you to go onto, even if you just follow me at ChaiFeldblum. If half of you do that, I'll go above 400 followers, and that would make me happy. But more so, I think you will see that there is a power to this social media that I did not understand until I started doing it. And it affects different demographics, but certainly there's a demographic that we can reach in that regard. And I am very pleased that one of the measures in that draft strategic plan, and hopefully in the final, is to in fact implement a new social media plan. Thank you so much for all of the testimony today.

CHAIR BERRIEN: Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you Madam Chair. I just want to echo the comments of my colleagues. Many thanks to all of our witnesses for your work in coming today and your testimony today, and your work over many years on this topic. And thanks again to the Chair's office and her staff, and in particular, Commissioner Ishimaru's staff, for all their work on this. And clearly, we have much work to do. So, thank you for your comments, and much appreciated.

CHAIR BERRIEN: In closing, I'd like to again thank Sharon Alexander on my staff and Antoinette Eates on Commissioner Ishimaru's staff for the tremendous work that went into preparing for today, for all of our witnesses, as well.

I've often said that the measure that I use to consider whether or not the work that we do is effective, and whether or not the work that we do is important, is a long-term measure as well as a short-term measure. And in a literal sense, the long-term measure is, "Do I expect the world, and the work world, to be the same when my nieces and nephews, the youngest of whom is a toddler, enter the workplace?" And the answer for me is a resounding no, and I believe that the workplace I occupy today is different because people who were working long before I was born were committed and determined to see to it that the workplace would be different from the one they lived in.

And in taking that long view, at the same time the work of the Commission, from my perspective, also must be informed by an appreciation for what's at stake. I mentioned earlier that I did represent a woman once in a pregnancy discrimination case, and there are two things that -- while some parts are no longer very clear in my mind with the passage of time; it's been more than 20 years -- some things are very clear to me, as clear as if I had worked on the case yesterday. And one of them is that, when I talked to my client about the impact of what happened to her when she was working and first began to be marginalized at work after her pregnancy was apparent, visible, and eventually lost her job and her opportunity to return to her job after she gave birth; what she shared with me was that, because she had a long-awaited and somewhat difficult road to becoming pregnant, that she was absolutely ecstatic when she learned she was pregnant. And instead of being able to spend the last part of her pregnancy preparing for the arrival of her child, she was worrying about whether she was going to have a job. She was worrying about whether she was going to be able to have her baby delivered by the doctor and in the hospital that she had chosen if she lost her job. She was worried about how she was going to feed the child once it was delivered, if she lost her job. So in a real sense, the stakes are very, very high about the work that we are discussing here. It's not an abstract injury. It's a very real injury that affects the quality of life for the people who come to this agency for help.

I know that many of our staff have worked very hard over a very long time to try to help and provide that help, but I think one thing we are hearing today -- and it reinforces a point that I firmly believe in how I approach the leadership of the EEOC, and how I approach the work of the agency, and how I approach the discussions that my colleagues and I have about the mission that we all are charged with carrying out -- is that if we are able to prevent a future act of discrimination, there's no question that the public will be greatly served by that.

So to the extent that we have heard both in concrete suggestions about how we can improve our enforcement, concrete suggestions in how we can communicate more clearly and effectively about the scope and the requirements of the law we enforce in this area, and concrete suggestions about how we can ensure that the public understands what is at stake as we enforce these important laws --- I think all of those are parts of the way forward and improving what we do. And I think it's clear from our discussion today that both those we've heard from and those on the Commission, recognize the urgency and the importance of these issues.

So I want to thank all of you again, and thank all of those in the public and those who may be watching us online for being with us. And as with previous meetings, I want to remind everyone that the Commission meeting record will be held open for 15 days following this meeting, and comments can be submitted to the EEOC. And our mailing address is 131 M St., NE, Washington, DC, 20507. It's also possible to submit comments by email at CommissionMeetingComments@EEOC.Gov.

If there's no further business, do we have a motion to adjourn?




CHAIR BERRIEN: All in favor?

(Chorus of ayes.)

CHAIR BERRIEN: Ayes have it. We are adjourned.

(Whereupon, the above-entitled meeting was adjourned at 1:01 p.m.)