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Meeting of June 22, 2011 - Disparate Treatment in 21st Century Hiring Decisions - Transcript


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


P. DAVID LOPEZ, General Counsel

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



  1. Announcements of Notation Notes
  2. Panel 1: Overview of Disparate Treatment In Hiring
  3. Panel 2: Overview of EEOC's Litigation
  4. Panel 3: Overview of Hiring Discrimination Research & Training
  5. Closing statements
  6. Adjournment


(9:35 a.m.)

CHAIR BERRIEN: Good morning everyone. The meeting of the EEOC will now come to order, and I want to thank everyone for being here both live and online. 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 will ask Bernadette Wilson from the Executive Secretariat to make administrative announcements. Ms. Wilson?

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

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

There were no notation votes finalized during the period June 7, 2011, through June 20, 2011. Madam Chair?

CHAIR BERRIEN: Thank you. Thank you Ms. Wilson. Before we begin with opening statements, I do want to announce that, as with our last Commission meeting, the Commission invites members of the public to submit written comments on any issues or matters discussed during today's meeting. We will hold the meeting record open for 15 days for receipt of public comments. Comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M Street NE, Washington, D.C. 20507, or emailed to All comments received will be made available to members of the Commission and to Commission staff working on the matters discussed at the meeting. Comments will also be placed in the EEOC library for public review, and we'll begin now with opening statements.

The purpose of today's meeting is to examine the role disparate treatment still plays in the 21st Century hiring market and efforts undertaken by the EEOC and the private sector to address it. This meeting is the third in a series of Commission meetings examining hiring discrimination and barriers to employment, and it's the seventh meeting since the Commission regained a full quorum a little more than a year ago.

As part of this series, we have examined the use of credit history in employment decisions, including hiring and promotion, and the practice of excluding unemployed job seekers from applicant pools. The Commission has also considered hiring, among other topics, during recent meetings on the impact -- during recent meetings that addressed and focused on the issue of the economic downturn and its impact on older workers and job seekers and barriers to employment of people with mental and intellectual disabilities.

While today's meeting continues the Commission's attention to issues and practices affecting job seekers, it is unique in its focus on disparate treatment in the hiring process. Forty-five years into the EEOC's history and despite progress, we still receive meritorious charges alleging hiring discrimination on the basis of race, sex, national origin, age, and disability.

Witnesses from the staff of three EEOC offices will testify today concerning hiring discrimination charges received and resolved by the Commission in recent years. Though the particulars are sometimes different today than they were when Title VII was enacted; use of a staffing firm to screen out applicants of a specific race or sex, for example, is as objectionable a practice today as running sex and race segregated want ads in newspapers was 45 years ago.

You will hear what 21st Century hiring discrimination looks like and hear suggestions today from a range of witnesses about things that can be done to prevent it or to address it when it occurs. As you will hear from our witnesses and in a brief opening statement by General Counsel Lopez, disparate treatment of job seekers remains a significant and important part of the EEOC's docket and its enforcement efforts, as well as our public education and outreach efforts.

It's my hope that today's meeting will highlight for the Commission, the private bar, the employer community, job seekers, and the general public, some of the conditions and practices that may prevent disparate treatment in hiring. We also expect some of today's witnesses to highlight recommendations for the EEOC concerning better and more effective enforcement of Title VII and other laws that prohibit hiring discrimination. Although there may be unique challenges in detecting, investigating, and proving disparate treatment in hiring; it is a challenge that this Agency has been called to address in the statutory charges it's received from Congress.

I want to thank my colleagues on the Commission in advance for their contributions to today's meeting, and I particularly want to thank General Counsel David Lopez and his staff, especially Leslie Annexstein, for working with me and with my staff and particularly Joi Chaney in preparation for this meeting. Most of all, I thank all of our witnesses, some of whom have traveled substantial distances to be here with us today, for testifying before us and for preparing to be here and for your donation and contribution of your time to inform and improve the work of the Commission. Thank you all for being here.

I would now like to invite my fellow Commissioners to make brief opening statements, and I would like to remind all Commissioners - let me just note that Commissioner Lipnic will be joining us in progress, but we will proceed and each Commissioner will be allotted up to five minutes for an opening statement. We will use our timing lights today, and we'll begin with Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Well thank you Madam Chair. Before I begin, I wanted to note the retirement of our colleague at Department of Justice, John Wodatch, who was the Chief of the Disability Rights Section. Commissioner Feldblum and I were at the Justice Department earlier this week as John celebrated, what, 40-plus years in public service. John was there in the government before disability rights became a law, and it came out during the course of this celebration that John really molded disability rights law. And, really, what did it mean? What did it mean? It wasn't just putting disability in the list of covered classes. It meant something totally new in how that developed over the years both at his time at the Department of Health, Education & Welfare, which no longer exists, and at the Department of Justice, so I wanted to note his retirement and his great contributions. He served under General Lee at the Justice Department when we were there in the nineties, and he will be sorely missed, but it was a pleasure to serve with him.

Madam Chair I'm delighted that we're doing this hearing today. As you noted, this is in a series of meetings we've done. Much of our work has been on new issues involving disparate impact-type cases, and so much of the work we do at the EEOC and so many of the charges that come before us are disparate treatment cases. And I think it makes good sense to highlight the continuing problem of disparate treatment and especially in the hiring context. I think this is -- this is well worth our time.

And, you know, I'm looking forward to the testimony of our witnesses today, but there's also the question of what do we do, and how does the Commission react, and what's our role after the Walmart case, and I think that's a question that is in the process of being thought about. Hopefully we'll have good answers soon, but, you know, I'm always leery of the instant analyses that show up on blogs, you know, ten minutes after the decision came down. And yet there is much to think about for the role of both public and private Attorneys General in dealing with the problem of employment discrimination and dealing with big cases, dealing with class cases. How does it impact the EEOC when we're not bound by the class rules, but there are other pieces in the decisions that may, in fact, affect us, and I think we need to think about how we can best play in this field. And frankly, I wonder whether or how we will deal with the likelihood that our charges will increase. I don't know if the 1.6 million women affected by Walmart will be filing charges with us, but if they did, that would -- I don't know what 16 times 100,000 is, but it would be a huge increase, and what does that mean for us? And as we're thinking about this and the disparate treatment case and dealing, thinking about what the resources we have available to us; how do we use our resources wisely? How do we choose cases to bring? How do we choose cases to pursue? I think that's something that we really need to think about hard, because choices need to be made so we're as effective as we can be. And that, I think, is something we all share, no matter how we differ on pieces of this. How can we be effective as a law enforcement agency?

So I'm looking forward to the testimony today. I appreciate the people who have come from far, as well as from near. Thank you Madam Chair.

CHAIR BERRIEN: Thank you Commissioner, and Commissioner Barker?

COMMISSIONER BARKER: Thank you Madam Chair and thank you for bringing the panels together and for organizing this, the meeting today. I really look forward to hearing from the people that are giving their time to us to share their expertise.

I think this is going to be a really interesting topic for us to examine today, and I think one of the things that's interesting is as a Commission, one of our obligations is not just to focus on what we are doing, but what we think we need to be doing in the future, five (5) years, 10 years, 20 years from now to sort of aim our use of our resources in that direction to make sure that we don't get caught behind the ball as trends develop. And so because of that we're always looking for developments and trends of discrimination or potential discrimination. So I think with the whole issue of hiring and disparate treatment; we've got not only the types of discrimination that we know about and have known about for the last 45 years; but we've got types of discrimination that are evolving, and some of that deals with hiring practices for those who are disabled, and some of it deals with hiring of -- hiring or non-hiring of those who are of different national origins. And I think with all the information that we continue to receive about changing demographics and as we continue to be an evolving country demographically, and there are more and more persons of different national origins who open businesses, become business owners, and who fall under our jurisdiction; it becomes incumbent upon us to make sure they understand how those laws apply to them. And we need to realize that to a number of business owners who may be of different national origins; it is still a new concept to them that coming here from their country, once they open a business here, our laws do not permit them to simply hire people from their country or people from, you know, a certain province of their country, even though to them that's not discrimination, in the United States, it is. And so the whole concept of hiring and selecting out the hiring is bringing new challenges to us I think with amendments to the ADA and the doors that that will hopefully open and as our demographics continue to evolve. Thank you.

CHAIR BERRIEN: Thank you. I recently visited our Miami and Los Angeles offices, and in both of those offices some of the issues you raised were very much a part of the conversation and the outreach in light of the diversity of those communities that they serve, but as we know, that the entire country in our offices are now serving, so thank you Commissioner. Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you Madam Chair. Thank you very much for putting together this meeting. Thank you to you and to your staff, in particular Joi Chaney, who is sitting behind you, and thank you to Counsel Lopez, because I know you were very involved in helping to conceptualize this and your staff, including Leslie Annexstein, who for some reason is sitting six rows back. And the reason I think it's so important is because work is so important. I often say that, you know, work is important for the soul. I mean, it's important to pay the rent and the mortgage and the food. I mean, you know, it's important for that, but it's important for the soul, because if you don't have a job, you don't feel like you are contributing to society. So it's just sort of basic. Not everyone's going to get every job, because they're not qualified for every job; but absolutely it should not be that someone doesn't get a job because of someone else's stereotype or myth or just dislike about their race or ethnicity or impairment or whatever. So whatever we can do as an Agency to make sure that those on the front line who are hiring: the managers, the supervisors, the hiring folks, understand what it is that the law requires, the better we will do for this country. So thank you very much for putting together this meeting.

CHAIR BERRIEN: Thank you, and as several of us have mentioned, the General Counsel has played a very significant role in conceiving and helping us to pull together today's meeting. And in light of that I have asked the General Counsel to please provide some introductory remarks to help to set the stage for the meeting and to help to provide an overview of our litigation efforts to combat and address hiring discrimination. So I'd like to turn now to General Counsel Lopez.

GENERAL COUNSEL LOPEZ: Thank you Madam Chair. We've never used it before. Thank you Madam Chair and Commissioners. In 1998, after ten years in Washington, D.C. and three years working with -- in the EEOC Headquarters with then Chair Gilbert Casellas, I transferred to the EEOC Phoenix District Office. On my first day I was shown my new office, which was empty except for one file on my desk. This file involved charges filed by two remarkable individuals alleging that Walmart failed to hire them for warehouse positions because of their disability. They were two deaf individuals living in Tucson, Arizona, and they had recently graduated from high school. They were looking for a job, and they had been very unsuccessful in their job efforts. Fortunately, Jeremy's mother had some inside information about Walmart and encouraged the young man to apply at Walmart. William and Jeremy filled out applications but never again heard back from Walmart. Like a good mother, Jeremy's mother encouraged them to follow up on it. She had learned that Walmart had, in fact, hired other non-deaf individuals in warehouse positions. When they followed up; the manager told them that they could not be hired, because it would not be safe for them to work there. There was no discussion of reasonable accommodation.

We filed a lawsuit in Tucson, a community of half a million persons where the EEOC's enforcement presence had been limited. The case allowed us to partner with the Arizona Center for Disability Law, the state protection and advocacy group. Fortunately, we were able to work out a resolution, a fabulous resolution to this lawsuit, with monetary relief, region-wide injunctive relief requiring revision of the reasonable accommodation policies. And as part of the resolution, Walmart also agreed to make job offers to William and Jeremy and to accommodate them in, among other ways, providing TTY services, closed-caption for training, and to use ASL as part of its computerized training module. William accepted the offer, the job offer, and commenced work at Walmart as a warehouse stocker.

As Headquarters and the district offices develop priorities for our limited resources, it is useful to remind ourselves of the pressing need for enforcement in the area of hiring discrimination and the EEOC's advantages in discovering this discrimination relative to the private bar. In the present difficult economic climate our country faces, this meeting on hiring discrimination could not be more timely.

Unlawful discrimination in hiring can result from employer conformity to customer preferences, employing stereotypes about jobs such as what is men's work, stereotypes about what individuals with disabilities could do, or discriminatory recruitment procedures. We have seen these cases recur in our litigation, and I believe the EEOC's uniquely positioned to combat this type of discrimination. You will hear some of those stories today.

Recently on the ABC show, "What Would You Do?" a program that uses hidden cameras to see how people will react; an episode aired showing an actor portraying a manager at a café who, in front of the entire café, refused to accept the job applications for a kitchen position of two deaf applicants, portrayed by two deaf actors. The video is on the ABC News website, and I encourage you all to look at it.

In this episode of the show, three customers employed in human resources spoke with the actor manager. Now these individuals were not actors, and they told him he should have accepted the applications and then never call the applicants or write a note on the applications stating that the applications were not "a good fit." When the actor manager asked if the problem was not refusing to hire them because they were deaf but rather saying this out loud; one of these HR representatives said, "That's exactly right, don't say it out loud." This example illustrates the challenge we face in rooting out covert hiring discrimination.

There is an asymmetry in the access to information between employers and prospective applicants. The asymmetry in access to information between employers and prospective employees means that when a job applicant is not selected for a job; she typically does not know the reasons for the non-selection or indeed who, if anyone, was selected for the job. As a result, it is unlikely that she will file a charge of discrimination. Thus, the discriminatory hiring decision will often evade detection. If a charge of discrimination is filed with the EEOC, however, we have the ability to obtain information that would typically be solely in the hands of the employer. We have the investigatory authority backed up by the subpoena power, if necessary, to interview the decision-maker, scrutinize the alleged decisions for non-hire, examine whether the person ultimately selected was less qualified, identify whether there were other persons potentially discriminated against by the same practice, and evaluate whether the employer's hiring practices reflect any broad statistically significant patterns difficult to explain by reasons other than discrimination. The private bar is, for the most part, not able to do this.

Let me return to William and Jeremy. The EEOC has and will continue to be involved in large systemic litigation challenging disparate treatment hiring discrimination. This is a good use of our limited resources and good law enforcement. We should not forget, however, that even smaller cases can have an enormous law enforcement impact and get us closer to the American ideal of equal opportunity.

William and Jeremy. Walmart failed to comply with the decree, and the EEOC filed an enforcement action. Walmart was found in contempt of court by the United States District Court for the District of Arizona. In ordering sanctions, the Court found that the company had failed to provide interpreters and TTY communications for the hearing impaired, pursuant to the decree. After the Court entered its order, the parties resolved the contempt action through an amended decree that broke new ground in requiring the company to air a professionally produced 90-second TV ad featuring the charging parties telling their stories in American Sign Language with a voiceover. The ad was shown over two weeks on ABC, CBS, and NBC during the shows such as Good Morning America, The Today Show, and Meet the Press. In addition, the decree provided for a monetary payment of more than $400,000 to the Arizona Center for Disability Law to support outreach and education for individuals with disability in the State of Arizona. If we can show the video.

(Whereupon, a video was played.)

GENERAL COUNSEL LOPEZ: Madam Chair, William has now returned to college, and Jeremy is now a chef in a high-end Tucson restaurant. I look forward to the testimony. Thank you.

CHAIR BERRIEN: Thank you very much General Counsel. I'd like to invite our first panel up to the mikes. We will begin with Grace Speights from the firm of Morgan, Lewis & Bockius, Bill Lann Lee from the firm of Louis, Feinberg, Lee, Renaker & Jackson, and Katharine Kores from our Memphis District Office of the EEOC. We'll begin with Ms. Speights. Our complete bio information will be available on our website, along with their complete testimony.

I want to thank all of you for being here with us. We've asked you to make an opening statement to the Commission of no more than ten minutes. There are timing lights to help guide you in that, and please remember that your full written testimony will become a part of the record and will be available on our website. So we'll begin with Ms. Speights, who is a partner in the firm of Morgan, Lewis & Bockius.

MS. SPEIGHTS: Good morning Madam Chair and Commissioners. Thank you for inviting me and giving me this opportunity to appear before you today. I'm a partner in the labor and employment practice at Morgan, Lewis & Bockius here in Washington, D.C. In my practice, I counsel employers in the area of employment law and corporate diversity best practices, and I defend employers in employment discrimination litigation with the primary focus being on class and collective actions. Morgan Lewis's labor and employment practice represents more than half of the Fortune 500 companies. We also represent privately held companies, financial institutions, healthcare providers, and a number of federal, state, local government and educational entities.

In an increasing global economy, most of the clients that I represent recognize that a diverse workforce gives them a competitive advantage. They therefore understand that it is important to build and maintain an inclusive workforce that draws on ideas and talents from all segments of the population. Grounded with this understanding, many of them are investing significant resources in designing and building diversity programs and, to some extent, voluntary affirmative action programs and restructuring their human resources function to assist in hiring.

In the short period of time allotted to me today, I would like to go over four topics very quickly: first, the hiring and diversity practices and policies which have been implemented by many of my clients, which I believe have significantly reduced the risk of and the number of disparate treatment hiring claims; second, the impact of the internet on hiring practices at companies; third, the challenges faced by staffing agencies; and, fourth, best practices for employers to reduce the risk of hiring claims.

My clients have been purposefully increasing human resources level of participation in the hiring process in an attempt to provide a consistent and organized level of oversight in the whole hiring practice. In many larger companies, there are specialists within the human resource departments whose sole function is to source, recruit, and staff for open positions. These specialists direct and supervise the hiring process and often participate in the process as a hands-on resource for management.

In larger companies where there are numerous divisions or business units hiring, a recruiting or staffing department is extremely helpful in maintaining overall consistency with company policy and practices and monitoring compliance with legal requirements.

Human resource departments are also more involved in identifying minimum qualifications, drafting and posting positions, and screening and reviewing resumes, including the determination of the initial panel of qualified applicants who will be interviewed by management. Many companies now require diverse slates of candidates to be presented to the hiring manager, and indeed when there is a qualified diverse candidate presented in that panel and that individual is not selected; in many companies human resources actually meet with the hiring manager to drill down on those decisions to determine why the diverse candidate was not hired for those positions.

In conjunction with the increased involvement of human resources in hiring oversight, many larger companies have also expanded their training programs for both human resource professionals and hiring managers. Human resources professionals generally receive formal internal and external training regarding hiring practice and compliance issues. Those same people then usually conduct and train hiring managers on legal requirements, hiring policies, and compliance.

Now looking at the impact of the internet for a few minutes, more and more employers, as you know, are accepting applications over the internet. Applicants can now apply for numerous jobs within minutes just using an internet job site. This method of accepting applications has helped companies to reach a greater number and diversity of applicants.

While this process has helped both applicants and employers to streamline the process, it has also resulted in employers being inundated with applications. Because the online application process usually is not labor-intensive, many people apply for many positions for which they are not qualified, because there is no real downside in applying for as many positions as possible. This can lead to additional failure to hire claims.

A positive outcome, however, of the growing use of online job applications is the investment by many companies in sophisticated applicant tracking systems. These systems keep track of all applications that are submitted for a vacancy, are able to link those applications with the posting and requisition that is sought to be filled, and tracks all applicants through the hiring process. These systems also make it much easier for human resources to look at a hiring manager's decision. They also make it much easier for employers to defend against hiring claims, because the information on each applicant for each position is readily available on the system.

Now, turning for a few minutes to the challenges faced by contingent staffing firms, contingent staffing companies can also help employers to increase diversity hiring, because they tend to recruit candidates from a wide range of sources. Unlike the companies that they work for; contingent staffing agencies, however, are held to a different legal standard and operate quite differently in the staffing aspect of their businesses, as opposed to when they are operating as an employer themselves. For instance, contingent staffing companies are not typically legally obligated to track individuals whom they source, screen, hire, and place at client locations as temporary contractors, because temporary employees are specifically excluded from EEO-1 reporting. Some critics of the staffing industry allege that contingent staffing companies steer certain races of employees to certain clients, presumably because of client preference. Because only those -- because only records of those candidates assigned to clients are maintained, it is difficult for contingent staffing agencies to establish that they do not participate in such practices. Therefore, the EEOC and other government agencies should focus on what efforts contingent staffing companies have made to develop training and policies to eliminate the potential of receiving illegal requests from clients. From our experience, this is a point of inquiry that is never made during most investigations. There has been a conscious effort in the industry to prohibit the misuse of the contingent personnel service offered by staffing companies by clients who may be attempting to use the industry as a means to circumvent the law.

Reputable contingent staffing companies maintain policies and train their employees on how to respond to inappropriate requests from their clients and often use such policies and training as an opportunity to educate clients on the law and the inherent risk for both their client and the staffing agency.

There are several different staffing -- contingent staffing models. They include employment agencies, day labor, professional employment organizations, and staffing companies. Each model has unique processes to obtain individualized business goals suited for their particular model. Each model may also provide different kinds of placements.

The kinds of records that are maintained by the contingent staffing agencies vary, depending on the kind of staffing model at issue. Consequently, because of the different models, placement, and legal obligations involved; it is important for the EEOC to better understand the various models, placements, and legal obligations involved when conducting an investigation.

Finally, best practices. Based on my experience, there are several best practices that employers can utilize to minimize potential failure to hire claims. First, employers should develop strong EEO policies, train company managers on the contents of those policies and the requirements of the law, and hold managers accountable if they fail to follow those policies.

Second, diversity training for managers and the workforce can go a long way toward enlightening personnel about the benefits of having an inclusive work environment.

Third, employers can increase human resources participation and oversight in the hiring processes as a form of check and balances, allowing human resources a greater degree of oversight in hiring, particularly in large companies, can help to maintain overall consistency with company policies and practices, including documentation and to monitor compliance with requirements.

Fourth, employers can take steps to widen and diversify the pool of candidates considered for employment opportunities by broadening their recruitment and outreach to sources that reach a more diverse applicant pool.

In conclusion, regardless of whether a company is large or small or maintains a separate in-house staffing group or uses a contingent staffing agency; the high cost of recruiting, hiring, and training new employees should act as a strong motivator for employers to recruit and hire the most qualified candidates. I believe that because the emphasis is on hiring the best candidate, and diversity is a valued factor in the hiring analysis at many companies; we are seeing fewer distinct disparate treatment hiring discrimination claims. Thank you, and I look forward to your questions.

CHAIR BERRIEN: Thank you. We'll turn now to Bill Lann Lee, who has represented plaintiffs in numerous employment discrimination cases but also served for approximately three years as the Assistant Attorney General for Civil Rights at the U.S. Department of Justice from 1997 to 2001, so also has a perspective based on federal government enforcement efforts, as well. We'll turn to you now, Mr. Lee.

MR. LEE: Thank you very much Chair Berrien, and thank you for inviting me to testify. Based on my experience prosecuting employment discrimination and civil rights class actions on behalf of minorities and women, as the Chair has mentioned, since 1975, I recommend that the Commission expand its efforts to effectuate the Commission's systemic investigation and litigation initiative generally and in the area of hiring discrimination particularly.

And I would note that Grace and I have appeared on panels together to talk about diversity best practices, and one of the remarkable things is that plaintiffs and defendants actually don't differ on what the best practices are. Unfortunately, in my cases I happen to encounter defendants who need Grace to come in and talk to them about best practices.

With respect to my background, as the Chair mentioned -- okay. Thank you. I apologize, Commissioner Feldblum.

CHAIR BERRIEN: They're also checking on the sound.

MR. LEE: Okay. I was an attorney with the NAACP Legal Defense Fund for 17 or 18 years in both the New York and Los Angeles office, and I brought cases on behalf of minorities and women. And as Commissioner Ishimaru pointed out, I was -- and the Chair pointed out -- I was Assistant Attorney General for Civil Rights in the Department of Justice, where I had the privilege of working with John Wodatch and Commissioner Ishimaru enforcing laws that Commissioner Feldblum wrote. And since that time at the Department of Justice I've continued to prosecute employment discrimination and other civil rights class actions at private firms. And one of the cases I wanted to highlight was a case against Abercrombie & Fitch, which was a joint prosecution of a race and gender discrimination case in which two district offices of the EEOC participated, as well as the Mexican-American Legal Defense Fund and the NAACP Legal Defense Fund and private firms. And in this time of scarce resources, perhaps that is a kind of model that I hope the General Counsel would consider.

In enacting Title VII, obviously, the Congress intended to create a national enforcement program against employment discrimination. It's not only to provide for private enforcement, also EEOC enforcement in the federal courts should administrative enforcement prove inadequate, and, as you know, the Justice Department also has litigation authority.

The Act obviously focuses not only on individual discrimination but also on systemic litigation, and as the 2006 EEOC Systemic Taskforce Report stated, "Combating systemic discrimination should be a top priority at EEOC and an intrinsic ongoing part of the Agency's work." I believe that the EEOC has a critical role to play in enforcing Title VII with respect to systemic litigation of cases in which protected groups are denied hiring. Obviously, this was an issue in the early days of the statute, and the EEOC, Justice Department, and private counsel played an important role in changing the face of the American workplace. However, my sense is that there have been four decades of progress but also -- more than four decades of progress -- but that hiring discrimination remains a major issue for minority groups, particularly African-Americans, Latinos in white collar positions and for women in non-traditional jobs and, I guess, for individuals with disabilities in all kinds of jobs.

I don't think I have to say very much more to add to the comments that have been made about how important hiring discrimination is. But I would also like to make the additional point that it's a fundamental problem, because if you don't get your foot on the rung, on the first rung of the ladder, there's no way you're going to climb that ladder. And I'm very proud of the fact that I brought a case and the Legal Defense Fund brought a case against the Los Angeles Police Department about promotions of African-Americans, women, and Latinos in terms of command positions, lieutenant and captains' jobs. But that case would not have been possible but for a prior case that had been brought involving hiring. Had those minorities and women not had the door opened for them in the hiring case, they would not have been in a position to even seek promotions.

Private plaintiffs in theory could challenge hiring discrimination in all the same ways that the EEOC could do, but as a practical matter they are less able than the Commission to bring enforcement actions in hiring cases. First, the day is long gone when employers have explicit written policies barring discrimination against certain groups. We don't have facial discrimination cases very much except in the case of persons with disabilities.

My experience is that in many systemic hiring cases, what you see is covert policies where the effects of practices are a part of a pattern of practice or unjustified adverse impact. And to harken what the first speaker talked about, there are employers who don't observe best practices. And often you see the stereotyping that's been discussed earlier in which you have policies that encourage stereotypic evaluations of individuals. Now, this obviously makes it very important that employers, plaintiffs, and judges have guidance on how to evaluate practices, and that's why the uniform guidelines on employee selection are so important.

Now, second, for the reason that you have a situation of practices, not policies, in most hiring cases, many individuals just don't know that they have been the victims of discrimination. Rarely does an offsite applicant know who got the job, much less who applied and was turned down, and they usually are uncertain why they were turned down.

Third, the resources and time required to investigate such practices and to uncover this kind of information about what was happening behind the curtain is simply not something that most private counsel or public interest organizations can afford to do. And then there is this issue of the unique challenges that private counsel have, which is because you don't have information about who the potential victims of hiring discrimination are, you can't interview people. You can't gather information, and in this respect, hiring discrimination is very much like the compensation practices, the kind that Lilly Ledbetter had, in which it's very hard to get that information.

And there are additional reasons why the private bar and public interest organizations are less able to investigate and prosecute systemic cases. First, there is the Twombly and Iqbal issues. The Supreme Court has heightened requirements for pleading specific facts at a time when plaintiffs and public interest groups aren't in a position to investigate.

Second, with respect to arbitration agreements, the Supreme Court has permitted arbitration agreements in which employers can insulate themselves from systemic class cases. The EEOC is not a party to such agreements, and they can enforce cases that plaintiff's counsel cannot enforce.

And then, in my written testimony, I refer to courts construing unnecessarily the requirements of Rule 23. I wrote this before the Walmart opinion, and I think that I still stand by that statement that I believe those restrictions are unwarranted. The Commission, as Commissioner Ishimaru pointed out, does not have to abide by Rule 23, but the reality is absent class treatment; the discovery of systemic hiring claims is extremely difficult to get information about.

In contrast, the Commission is potentially better able to investigate possible systemic hiring discrimination. The EEOC has access to EEO-1 data and Department of Labor OFCCP data for those employers who are federal contractors, and that can be used with cross-reference to census and other data.

The EEOC does not rely solely on complaints. They can conduct investigations and target cases for investigation, and the ability to use objective data to target investigations is very important.

As the General Counsel pointed out, the EEOC has the subpoena power. Private plaintiffs and civil rights groups, for instance, cannot get access to who the applicants are who applied for a job before they file a lawsuit, the EEOC can, through its administrative enforcement authority. As a result, the EEOC is likely to have a better record in order to figure out when to go ahead, and as I pointed out, the EEOC is not bound by Rule 23.

CHAIR: Excuse me, Mr. Lee, I know we lost some time because of the sound adjustment, but if you could begin to wrap up.

MR. LEE: I'm at that point where I have recommendations. I've had experience setting some priorities, and I'll just say quickly, I think that hiring should be a really high priority. It's a kind of violation that leads to other violations, and employees know an employer, their hiring practices, that's a simple reality. EEO-1, OFCCP data, the Commission should use that more for continuous targeting. Collaboration with DOJ, OFCCP, I think that's going on, and I encourage it.

With respect to joint prosecution of cases with outside groups, I think -- I hope that the Commission would consider doing more cases like the Abercrombie & Fitch case. And, last, with respect -- I was going to say something about research, but I'll defer that for others.

I just wanted to say that this Commission knows better than anybody else that Title VII is a continuous dialogue between the courts and Congress, and I don't think the last word has been heard about the issues raised in the Walmart case. And I certainly hope that the Commission lends its expertise to Congress. It's not just a Lilly Ledbetter statute, but many other statutes in which Congress has made it clear that it wants enforcement of the statute. Thank you, Your Honor. Thank you. I'll say Your Honor, but Chair for your indulgence. Thank you.

CHAIR BERRIEN: Thank you Mr. Lee, and we'll conclude this panel with the testimony of Katharine Kores, a former Regional Attorney in the Memphis District Office and now the District Director of the Memphis District Office and significantly for this discussion, also a member of the systemic taskforce and testified before the Commission previously on that work. Thank you Ms. Kores.

MS. KORES: Thank you. Good morning everyone, and thank you for inviting me to testify this morning. In the nearly half century since the passage of the Civil Rights Act of 1964, many gains have been made in the effort to eliminate hiring discrimination. At the time of Title VII's passage, there was blatant exclusion of African-Americans, women, certain ethnic groups, and individuals with disabilities from large segments of the economy. We have come a long way since that time, but disparate treatment in hiring remains a problem in the 21st Century workplace, and therefore it's still a major area of concern for the EEOC.

As has been said previously today, hiring cases can be difficult to identify and investigate; because applicants for positions don't necessarily have the inside information necessary to establish that hiring discrimination occurred. Individual job seekers only know their own qualifications, how they learned of a particular job opportunity, and their own impression of the interview. They don't know if or who the employer ultimately hired. They don't know what that person's credentials might have been. Moreover, they don't know the race or the gender or the age of the other composition of the employer's workforce. As a result, it's difficult to gauge the prevalence of disparate treatment in hiring discrimination cases based on EEOC charges alone. The difficulty in hiring and investigating these cases may suppress the number of charges that we receive and mask the full extent of the problem.

From fiscal year 2009 through the first half of fiscal 2011, charge receipts alleging hiring discrimination comprised six percent of all charges filed nationally. Of the charges alleging hiring discrimination, discrimination on the basis of age is the most prevalent.

From fiscal year 2009 through the first half of fiscal 2011, the percentage of hiring charges alleging age discrimination was nearly 38 percent of all of those charges. The next highest basis in hiring discrimination was based on race, which averaged 36 percent over the time period, followed by disability at 24 percent, and the fourth highest is gender at 20.9 percent.

The disparate treatment charges that the EEOC receives often involved fact patterns in which the discrimination is more obvious. Trends that we have seen in recent years involved employers or recruiters who have denied entry level positions to older workers claiming that the older worker is overqualified, even though they've never worked in this particular area, or that they're saving jobs for college or high school students. They've failed to hire older workers, because they assumed that older workers would not have the requisite technological skills. They have tracked workers by race, ethnicity, or gender into one job or another based on protected characteristics, or they've failed to hire by race, ethnicity, or gender for certain jobs. They've maintained a blanket no-hire policy for workers with certain disabilities without considering whether reasonable accommodation might be possible, and they've failed to hire currently pregnant women based on assumptions about their physical capabilities. And they've preferred hiring of one racial or ethnic group over others based on stereotypes about those groups, and the Office of General Counsel staff will feature two of these cases. I just want to mention a couple of examples here.

In an age discrimination case litigated by the Commission's Charlotte office against the City of Greensboro, the charging party, aged 58, was the only candidate for an electronic repair position who possessed a required federal license. Despite the license, the City didn't select him for the position. The charging party was the oldest of the five candidates under consideration; and though the employer asserted that the charging party received the third highest interview score; the employer failed to maintain interview notes and score sheets. The case was resolved with a consent decree providing over $90,000 to the charging party and requiring training on non-discrimination in hiring and preservation of documentation.

In a case out of my district in 2010, a consent decree was entered to resolve the Commission's case against Paramount Staffing, which is a temporary employment agency which refused to place African-American workers at a particular work site, preferring instead to hire Hispanic workers. The decree ordered the company to pay $585,000 to a group of African-American workers and an injunction against future race or national origin based discrimination.

The preference of Hispanic workers over non-Hispanic workers based on stereotypes, often negative, about both groups is certainly something EEOC is seeing in its charges. Gender discrimination in hiring is also still a serious concern, especially with respect to tracking men and women to certain types of jobs. In a Title VII case which was litigated by the Commission, a female applicant at Wally-Mo Trailers was denied a job as a welder fabricator, despite her experience or qualifications, because the employer's policy was not to consider women for these jobs. And men are also the victims of gender-based hiring discrimination.

Hiring discrimination remains a serious barrier to the employment of persons with disabilities. In a case litigated by the Memphis office, Starbucks refused to hire an applicant with multiple sclerosis. The employer concluded without inquiry that he would be unable to serve customers behind the counter. And this case was resolved with a consent decree paying $80,000 to the charging party, injunctive relief enjoining disability based hiring discrimination, and, requiring the employer to make good faith efforts to hire individuals with disabilities by notifying the local rehabilitation services agency of job vacancies.

EEOC is also currently investigating employers accused of maintaining a no-hire policy for individuals with certain types of prescriptions like those for anti-anxiety medication, with certain types of injuries such as carpal tunnel.

As I mentioned previously, and it's been said before, hiring discrimination can be difficult to identify and investigate. The increased use of staffing agencies creates challenges for investigating hiring discrimination where one company employs another to screen applicants. And I believe most staffing agencies and recruiters comply with the law, but there are those, whether they do it on their own or on the request of the employer they're working for; who engage in disparate treatment against protected groups in their screenings and placements. And when this happens, charges are filed against both the staffing agency and the employer, and the records of both companies must be reviewed, provided there are records to review, which leads me to another point.

All of the laws which are enforced by the EEOC have record-keeping requirements, yet, as noted in many of our cases previously, employers don't comply with these requirements. And of those who do comply with the requirements, they don't necessarily maintain the records in a format that's readily searchable, which makes it difficult to get the information that's necessary to do a proper investigation.

The EEOC uses a variety of tools and practices in order to effectively investigate charges of disparate treatment in hiring. In addition to doing in-depth interviews with charging parties, our investigators have access to EEO-1 data at their fingertips. Any investigator is able to review a snapshot of the employer's workforce compared to similar employers in the geographic area, but by itself EEO-1 data is not sufficient to determine whether or not there is merit to an allegation of hiring discrimination. It may provide a background, background information which would be helpful in framing the investigation.

In cases involving alleged discriminatory hiring practices -- policies, excuse me, the investigator will request information from the employer regarding the types of records it maintains and whether it's available in electronically accessible format. And we're assisted in making these technical requests by a team of social science research analysts and labor economists who are on the staff of our Office of Research and Information Planning, and nine of these experts are assigned to work in district offices. A follow-up request is then made for information relevant to the charge, and it's asked for in electronic form. This enables our investigators working with our in-house experts to analyze the data to see whether the allegation of discrimination is supported or not.

As has been mentioned before, the Commission does not always need a charge filed by a member of the public to initiate an investigation into discriminatory hiring. Pursuant to Title VII, discriminatory hiring practices may be investigated upon issuance of a Commissioner's charge. Moreover, under the ADEA, EEOC District Directors are authorized to initiate directed investigations into a company's hiring practices. The Commission is also aided in its investigations by the authority to subpoena information when it's not possible to obtain the information voluntarily.

An effective enforcement strategy for the 21st Century must include an education component. It must be communicated that hiring based on an individual's qualifications to perform a particular job is the best practice. Stereotypes persist in the 21st Century. Workplace and employers I think have to act affirmatively to ensure that they don't illegally influence their hiring decisions. It's also important to educate employers regarding their responsibilities under the laws to maintain records.

Since the Systemic Taskforce Report was issued and adopted unanimously by the Commission in 2006, significant progress has been made in the investigation and litigation of systemic pattern and practice cases. And we're committed to continuing that systemic approach in cases involving discriminatory hiring, and this includes the use of Commissioners' charges and directed investigations, utilizing anecdotal information supported by EEO-1 data, knowledge we obtain from the investigation of other charges, as well as from living in the community. It also means coordinated investigations and litigation within the Commission and partnering with other federal agencies such as the Department of Labor, the Department of Justice. And I think that this systemic approach will allow the Commission to maximize its resources and continue to make progress in investigating and remedying situations of disparate treatment in hiring. Thank you again for inviting me, and I look forward to questions.

CHAIR BERRIEN: Thank you. Thank you to all of the participants in Panel 1, and we'll begin with questions and comments from the Commission beginning with Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Great. Thank you Madam Chair. I want to thank the General Counsel, too, especially for showing that video clip that they aired in Tucson on Walmart. I thought it was super. I only wish, though, that it would have been shown all over the country, because I thought it was that powerful that Walmart wants to get people with disabilities, and that was a result of your lawsuit. And I wish that, you know, everyone saw that, especially during the morning shows and during prime time, as you indicated, so congratulations for that.

Thank you to the panel. Ms. Speights raised so many issues in her ten minutes, I was very impressed, and I only wish that her clientele was even broader than it is, because it raised a whole host of questions, including the internet applicant question that I know Commissioner Lipnic worked on when she was the Assistant Secretary of Labor, new and difficult issues and raising concerns for all of us of how do you best do this. How do employers do it in a correct way that's compliant? But the thing that the General Counsel mentioned about the TV show, "What Would You Do?" on ABC News was most disturbing to me, and I guess one of my concerns is that we need to rely on HR professionals. We need to rely on HR departments to help us understand what the requirements are and to comply with the law. And the piece that David referred to, showed three independent HR professionals who happened to be in this coffee shop, unsolicited, going up to the manager and saying, "This is how you evade the law." And, you know, despite the best training that goes on and the best practices that both you and Ms. Vann talk about in your testimony, how do you get beyond the innate desire of people to want to please the boss? You know, the boss doesn't want to do something, so this is how you do it. And, you know, I don't know if there is an answer, certainly not in my five minutes, but that's our challenge, I think, and I don't know if there is any quick way around that, but that was a disturbing thing.

Let me go on to a question. Grace and I could talk about this forever, but I do have a question for Mr. Lee, my former boss at the Department of Justice who I spent many an hour with getting ready for Hill testimony, some of it hostile, indeed. This will not be a hostile question.

We talk here about hidden hiring discrimination and the difficulty of getting to it, because people just don't know. And one of the techniques that has been used in civil rights law has been match-paired testing, and I know -- I was reminded of this at the Wodatch retirement ceremony, because former Attorney General Thornburgh was there. And it was under his tenure at the Department of Justice that they started the matched-pair testing program for housing discrimination. It was -- it had wide bipartisan support. I know Senator Hatch was a strong supporter, and that has rooted out housing discrimination when applicants for housing go and are turned away because of their race or because they have a disability or because of their gender, has been used with success and with praise in the housing field. Yet, in the employment area, it has not been used to a great extent and has garnered some controversy. And, you know, is this one technique we should consider a properly constructed hiring program? You know, has it been used by the private bar, by private -- by private Attorneys General?

MR. LEE: It has generally not been used by the private bar, and I think there are some textual differences between Title VII and Title VIII, but I would certainly encourage the Commission to take a look at it for the following reason, which is in this area, after you look at EEO-1 data, OFCCP data, that kind of objective data. Then you rely on the anecdotal evidence, and this kind of data that you're talking about, this kind of testing data, is in between the anecdotal evidence and the objective data, and it can be very strong evidence in particular of disparate treatment. So I would think that the EEOC has a better ability to do that. And I would point out that the programs that you're referring to are government programs, and I think it would certainly have more standing, perhaps, if it were conducted by the government. So I would certainly encourage, and I think it's a good idea, notwithstanding the textual differences.

COMMISSIONER ISHIMARU: Well, I think the difficulty in hiring discrimination is that quite often people just don't know. They're looking for a job. They want to find a job. They have bills to pay, and they're not going to file a charge with the EEOC if they've been turned down unless they know. And quite often they don't know, and that's the challenge that we have. I see my time is up. Thank you Madam Chair.

CHAIR BERRIEN: Thank you Commissioner. Commissioner Barker?

COMMISSIONER BARKER: I forgot about that little red button. Thank you to all three of you for your really insightful testimonies, and, Ms. Speights, some of your best practices I thought were -- you know, you had some great ideas. And I'm delighted to hear that the companies that you represent are relying more and more on trained HR folks whose business it is to focus only on personnel issues day in and day out, instead of, you know, the business of what the company is producing. So that makes great sense and just fundamentally a good practice for companies who have those trained personnel to do.

Mr. Lee and Ms. Kores, but, I guess, Mr. Lee first, I'm just curious, because you have practiced in this area for so long. In like the last five, 10 years, are you seeing different types of cases than what you saw earlier on? Are there some new issues or some new things developing that it would be helpful if you told us about?

MR. LEE: Just maybe it's my cast of mind, but I tend to see things, continuing kinds of things. I'm not sure I see new things. I did note your point about new employers, and I think that that is an interesting point, because I find that many of the employers that I end up suing are -- there's a reason they're not -- they don't know about best practices, and it's not just because they don't have the appropriate counsel. It's just that they may be new companies. They may be small, growing companies. They may also be companies with high turnover, and high turnover companies, let's say, in sales or fast food kinds of operations; once you know you're hiring a lot of people, I think you tend to be -- the operations people tend to be lazier.

I would agree with the point about the importance of the HR people, and the HR people are a very important constituency of this Commission. The reality is in the class action settlements I've been involved in, the key beneficiaries within a company are those advocates for diversity and fairness, and often that means increasing the size of the HR departments. But I think certainly there should be an easier way for a company to learn about the best practice other than being sued, so I agree that the educational role is something very important. As you point out, if there are a lot of new employers and startup kinds of outfits, it's an important opportunity action.

COMMISSIONER BARKER: I'm particularly concerned about a company that is, you know, doesn't have the luxury of having trained HR people to guide them. For example, you've got, say, a small ethnic restaurant, you know, certainly no HR person, you know, barely a bookkeeper. Bookkeeper likely wears other hats, too. And, you know, what is the best way to get across to those people that they have to do more than follow their instincts on hiring? They can't necessarily hire waiters who all have their -- share their same ethnicity. Do you have any thoughts on that, Mr. Lee?

MR. LEE: Well, I'm not sure it's just an ethnicity issue. I think that many small operations are family-run, so there's a tendency to hire your relatives.

COMMISSIONER BARKER: That's a very good point.

MR. LEE: And I think you have a good point in that there's a need for outreach and training and education. At the same time, these are the people we want to have in our country, because, after all, who is opening new businesses? And much of Silicon Valley is actually minority-owned businesses. I think, in my experience, EEOC actually has a very valuable role. I have participated in meetings in the Silicon Valley and in the San Francisco area that were meetings held by the EEOC, the District Office, in which I think I and someone like Grace, you know, and you would actually talk about the kinds of issues that employers ought to know about. And I don't think it was a particular focus to just smaller employers, but I think that might be something that's worthwhile.

COMMISSIONER BARKER: Thank you very much.

MR. LEE: I think that that was valuable. I don't know if you do it in Memphis, but maybe it would be helpful.

COMMISSIONER BARKER: My time is up. Thank you very much.

CHAIR BERRIEN: Thank you Commissioner. Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thanks so much. Ms. Speights, thanks so much for mentioning the growth in the online applications. That is certainly something that folks in the blind community and the visually impaired community are very aware of. And so this is just a comment that there's obviously two places where that can be governed by the law, Title III of the ADA, and the Department of Justice is very active in terms of looking at accessibility of the internet, but also under Title I. You do have to make accommodations for applicants, and that also means making sure that those are accessible. So I'm happy to hear a comment from any of you about whether you think that's happening, but here's the question I want to ask to all three of you. I do think it is quite striking to have watched that, "What Would You Do?" clip that General Counsel Lopez mentioned. And as I -- and listening to the actor saying, "Well, yes, you can file it, but I'm not hiring you, because you're deaf, so forget it." I'm thinking that person could have gone to ten HR trainings for all we know, I mean, in real-life someone like that, and they're like, "I'm just not going to deal with this." So I am curious about the possibility of having that person feel a little more accountability. So here's my legal question. I understand this is not the law right now, but I'm curious. So the law says it shall be an unlawful employment practice for an employer to refuse to hire an individual because of race, color, religion, right, and an employer is any person engaged in commerce, and any person is one or more individuals. So in terms of the text of this statute, an individual, that individual person, may not refuse to hire, and therefore, again, just from the text of this statute, that individual could also be liable for damages if found to discriminate. Now I know that's not the case law. The case law is there isn't, but I'm curious about, A, if you could just tell us about how it is that the case law developed that the individual is not him or herself obligated to pay damages if discrimination is found. But second, policy-wise, do you think that would be a good or a bad thing if the law was changed in whatever way was required to enable damages, not to let the -- not to let the company off, not to let the -- overall, but to also have that person feel like there's a little something at stake? I'll go to whichever one wants to start.

MR. LEE: I'd like to give you an answer that starts with sociology. Alexandra Kalev, in an article written that's actually the first article about what works in terms of accountability, actually talks about the kinds of things that work. And in order to have individual responsibility by the lowest level HR person, I think you need to have not only that the person at the top says, "This is what the company is doing, and this is what we're doing, because we're going to make money doing it," but also that there be structures within place so that that individual at the bottom is not a lone ranger. I -- generally, the law is not developed to have the agent of the company be personally responsible. I don't know -- I don't think I do know of any such cases, so I believe you're right about how the law has been construed. I'm not sure how valuable it would be, because my experience is that the agent, the HR person --

COMMISSIONER FELDBLUM: No, no, it's very important to hear that I think the HR people often get it.

MR. LEE: Yes.

COMMISSIONER FELDBLUM: And their -- it's the supervisor who is then hiring, not the HR person. I mean, in this café it was the -- you know, walked into the person. It was the person behind the counter, and that's the way it is in a lot of places, places that don't have HR companies -- HR people at all, but even places that are big and have HR people, I mean, I think that's nice that the HR people are getting now more involved, but in lots and lots of companies; they don't do the hiring.

MR. LEE: Well, you're right. One of the problems, actually, is the HR people are sort of in a ghetto by themselves in some ways, and it's really important to get to the operations people and the hiring managers, as opposed to just those who advise them.

COMMISSIONER FELDBLUM: So given my time, Ms. Speights, what do you think if the law was changed in that both the company and the agent down to the actual supervisor might be liable for damages him/herself?

MS. SPEIGHTS: Well, I think that it probably would be a waste of resources going after most individuals at that level, because even if you got the judgment, it's not probably going to be collectable, so I think it's a waste of resources. But I think what you need to be focusing on is companies making sure that they have accountability measures internally so if you have an employee who behaves like that, the employee has to be disciplined, and it has to be -- I hate to say zero tolerance, because that means different things at different places, but you have to have accountability mechanisms in the company for dealing with that individual.

MS. KORES: Could I just add that I agree that there has to be accountability measures, but there's also a failure, I think, for the company to have gotten the message down to that first person on the line that that's not what we want. We don't accept that kind of hiring practice. We want a diverse workforce. That there is a failure still from the higher levels, which is why the company needs to be accountable to communicate that message to the lowest levels.


CHAIR BERRIEN: Thank you Commissioner. Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you Madam Chair, and my apologies to my colleagues for coming in late and to the witnesses, welcome to all the witnesses. If I don't make any sense, it's because I'm still on California time, so feels like I just landed a few hours ago.

I wanted to ask Grace in particular, you focused -- and, actually, Ms. Kores you talked a lot about contingent staffing agencies and their role in the hiring process, and increasing role, and I would expect, you know, given the unemployment situation in the country, probably that's going to be -- I mean, that's fairly standard at this point and perhaps increasingly so.

One thing that you mentioned, Grace, and I wanted to be clear about, you talk about sort of the lack of record-keeping or the difference in record-keeping for particularly as to EEO-1 for staffing companies. So, just so I'm clear, were you suggesting that you thought they should have a greater requirement in terms of their reporting?

MS. SPEIGHTS: I'm not suggesting that there be a greater requirement, but I think there needs to be some guidance on what they should be doing, because -- and again, it's got to -- it's peculiar to the model, because as this whole industry has developed; I mean, there are just so many different models that various agencies use. You know, the whole -- where they assist with permanent placements, it's a different situation in terms of what they do and what records they keep. The go-to-work placement is a completely different situation, the pure temporary placement, and then the temporary to permanent placement. So what I'm saying is I think -- and what we have seen is when the agencies are sued for the various things that we've talked about; there is sort of the blanket document request, which I think there was a mention that they're tailored for the claims in the case. Well, I don't want to get into that debate here. I'm not -- I'm not sure that they are tailored. I think it's more of a broad request that may not fit the model that is at issue, so from my standpoint I think there needs to be from the Commission, at least, a consideration of what is the model at issue and then what type of documents would we expect that they would have.

COMMISSIONER LIPNIC: And understanding as a threshold matter that there are these different models.

MS. SPEIGHTS: That's exactly right.

COMMISSIONER LIPNIC: And do you have any thoughts on that, Ms. Kores?

MS. KORES: I understand that it certainly would be easier to investigate charges involving staffing agencies if there were reporting requirements on referrals. The EEO-3 requirement I think requires unionized temporary workers who are placed through union referral halls, those people on that report are identified. If the EEO-3 requirement could be expanded to include private staffing agencies, that would be very helpful for investigating these cases.

COMMISSIONER LIPNIC: And Mr. Lee do you have any?

MR. LEE: I don't know the intricacies of staffing agencies, but I think that generally, based on my experience, I'd say record-keeping is a very important thing for the Agency, for the Commission to get out the word on and to have regulations on. The reality in the business world is if you count it, it's important, and if you don't count it, it's not important. So I think if this Commission believes, and I think it's appropriate that given the increasing role of staffing agencies; that more specificity is needed, sensitive to the kinds of differences there may be, but I think that would actually help drive compliance and be a good thing.

COMMISSIONER LIPNIC: So more specificity but not a kind of one-size-fits-all approach.


COMMISSIONER LIPNIC: Okay. And one other question that I have, and, I mean, this is something, you know, over the last year we've had a number of Commission meetings about, issues like background checks and issues in the hiring process that may tend to have a disparate impact and the potential for those to have a discriminatory impact. And I'm wondering, and maybe, especially, if you could sort of give us your thoughts, Grace, about how the reaction of employers to, you know, the EEOC looking -- us looking at various types of screens and how they are able to balance that with the candidates they need and the best qualified people for their jobs and what you see in your experience with that.

MS. SPEIGHTS: In terms of their reaction to the Commission?

COMMISSIONER LIPNIC: Right, well, and just in terms of their ability to, you know, have the type -- establish the qualifications that they need to get the candidates that they need for their jobs.

MS. SPEIGHTS: I think that, I mean, in light of the Commission's focus, obviously, on the credit checks, background checks, and things, I mean, I think most employers now understand, at least, that it's not a -- it goes back to your earlier question, a one-size-fits-all, that there may be positions within their companies where you have to have individuals who meet those credit checks or background checks but not everyone. So, from my clients' standpoint, I'm starting to see a more sort of tailored approach, not all of them, but many of them, a more tailored approach as to when those types of assessments are used.

COMMISSIONER LIPNIC: Can I, just to ask a follow-up question on that, and do you -- have you found it perhaps recently the case that particularly for HR professionals, that this is somehow different than what they've been taught over the last 30 years, which is, you know, "Our uniformly applied policy, treat everyone the same," and now it's much more the individualized assessment even beyond in the ADA context?

MS. SPEIGHTS: Yes. I mean, it's completely different from --

COMMISSIONER LIPNIC: Alice through the looking glass.

MS. SPEIGHTS: Yes, it's completely different from what they've learned, because with most of the HR professionals that I talk to, it's about everyone has to be treated the same across the board, because if you don't, then you're into disparate treatment, and we're worried about that. And now getting them to focus on, it's okay to do an individualized determination, but keep records of why you made the decision. I think we're getting them there more and more.

COMMISSIONER LIPNIC: And I see you're nodding your head, Ms. Kores.

MS. KORES: I absolutely agree. It's – there's nothing easy about HR work.

MR. LEE: Well, I think that it's often when we think of individualized assessment, they often really aren't individualized, in fact, and I think that there is not quite the bright line difference between treatment and disparate impact that you see in theory. I think in the real world, sometimes they merge, but I think that you get to the same place, which is corporate leadership needs to exert as much control as possible, and to get the word out on what they want, there should be consistency of practices. An individual should be considered based on their qualifications, the job-related qualifications and not extraneous qualifications, because the issues that you were raising also are also disparate impact --


MR. LEE: -- issues, as well as disparate treatment issues.

COMMISSIONER LIPNIC: Right. Thank you all very much. Thank you Madam Chair.

CHAIR BERRIEN: Thank you, and Commissioner Lipnic I do just want to note that if you missed our opening statement round, if you would like to submit anything for the record, of course, you're welcome to.

COMMISSIONER LIPNIC: I will submit a written statement to the record. Thank you.

CHAIR BERRIEN: Thank you. I'd like to ask, I think, the entire panel, but I'd focus initially on Ms. Speights, because you did address the internet and its role in the application process in your testimony. I am interested to what extent does the guidance that this Commission has issued in the past or developed and the application of the law by the courts address or resolve special concerns that might arise because of online job application processes? And I'd like to hear from, really, anyone on the panel about that.

MS. SPEIGHTS: Well, I think the real issue is just the volume of applications because of the internet, makes it very difficult for employers to think about the guidelines and the guidance that has been given by this Commission. And frankly, I haven't looked at it in quite some time myself, but I do think it probably would be worth looking at it, because this whole new age of internet and resumes, I mean, I don't think you can understand sort of the kinds and the amounts of applications that come in. There are many applications that come in even though there is not even a position posted. I mean, there are, you know, some that are obviously just a little ridiculous where you have people who are posting and say they want to apply for the CEO's position. Well, I would, too. That's the extreme, but I do think it would be worth looking at the guidance that has been given, because it's a whole new world with the internet.

MR. LEE: I think it's important not only to look at volume but also recognize that an internet application is what the letter would have been a couple years ago. I hardly send letters, and I don't want, when I send an email, I don't think it should be treated as something less than a letter. And most of the recipients, I assume, don't treat it as less than a letter. So I think that you ought to be sensitive to the fact that as we -- as our world becomes more and more electronic, these internet applications are intended to mean something. In the Silicon Valley, which is close to our office, I mean, no one uses snail mail. I mean, just no one does it, so the volume is an issue, but we shouldn't lose sight of the fact that these are significant documents.

MS. KORES: I would say that in my experience the guidance that the Commission puts out, the discussions that the Commission has about issues really is important information. It provides important information that the smaller employees like -- employers like Commissioner Barker was referring to, I think that they utilize that information. When we have that information we, as we do outreach, can utilize it to help to educate people, and the big issue for me with respect to internet applications is, you know, records. We need to keep those records to be able to inform people through our outreach based on information that the Commission has developed. It's very helpful, and so I don't think that there is any damage that would be done. In fact, there would be a lot of help that would be provided by the Commission, you know, exploring and doing guidance in this area.

MS. SPEIGHTS: One other issue on the record retention, that's another issue, because there is a cost associated with keeping the electronic files even when you archive them. So to the extent that there is a records retention requirement for all of these applications that are now coming in, it's something else that has to be thought about.

MR. LEE: I think also it's not just the carrot but also the stick. I think the General Counsel's office should, when there is lack of record-keeping, I think it's important to bring those cases and if it's in litigation, to obtain preclusion orders, because then, as I said, the carrot and the stick. I mean, the Commission has a range of options to get the point across.

CHAIR BERRIEN: In a typical case the Commission has seen involving staffing firms, there are questions about whether a firm was instructed to screen out particular candidates or applicants, and there may also be a question about whether they act on it. Ms. Kores, could you just speak to how we handle those two parts of possible -- of investigating possible violations?

MS. KORES: Well, first of all, as I mentioned in my remarks, we make sure that where there is a staffing agency-employer situation that we have charges against both of them. And we look at records that are created by both entities to get what information we can, and then the anecdotal information is what's key in where did this come from. If what the records show is that there is this disparate treatment in hiring, where does it come from? Is the agency, the staffing agency operating on its own? Did they -- is this just, you know, their approach to work that's well known in the community, and that's why the company selected them as their agency, or is this some message that they obtained, either directly or indirectly, or that they interpreted somehow from some directive that they received from the company? It's really just a matter of intensive investigation to determine where it came from, but, either way, if the disparate treatment in hiring is taking place, they both need to be held to account.

CHAIR BERRIEN: Thank you all very much, and we will break for 10 minutes and resume with our second panel, so please report back in 10 minutes for the continuation of the meeting, and thank you again for our first panel witnesses.

(Whereupon, a recess was taken)

CHAIR BERRIEN: Thank you. The meeting will come back to order, and we'll hear now from our second panel, which consists of Kate Boehringer, a Supervisory Trial Attorney from our Baltimore Office, Diane Smason, Supervisory Trial Attorney from the Chicago District Office, and we will also be hearing from Ms. Lopez, Ana Lopez, who will be speaking together with Ms. Boehringer and with Ms. Wilkins, Ms. Jeannette Wilkins, who will be speaking together with Ms. Smason.

So I want to thank you all. All of you traveled at least some distance to be here, and we appreciate your presence and participation. We'll begin with Kate Boehringer.

MS. BOEHRINGER: Thank you. Good morning everyone, and I am so thrilled to be here. Thank you so much for giving me the opportunity to talk today. I'm an EEOC Supervisory Trial Attorney in the Baltimore Field Office, and I am honored to work with attorneys and investigators every day in our offices in Philadelphia, Pittsburgh, Baltimore, and Cleveland.

We're here today to talk about Area Temps, which is a temporary placement case that we brought out of the Cleveland office, and I'll provide you with a short summary of the litigation, and then Ms. Ana Lopez-Rodriguez will tell you about her experience working at Area Temps.

Before I get to the litigation, I want to pause for a moment and address some of these issues that I was practically jumping out of my chair in the audience to address, which are so near and dear to my heart, one of which is just the practical difficulty in investigating these cases. And particularly with regard to temp agencies; not only do workers not know why they haven't been selected or that they have been -- another person has been selected who is less qualified, but sometimes they don't even know that they have been denied anything at all, because they are, in fact, placed. They're just not placed at a company that wants someone of their gender, race, age, or other protected status. So we often have a situation where they do not even know they've been a victim of anything.

As with all hiring cases, there's been a lot of talk here about the authority that the EEOC has and the power we have to affect these laws. We must exercise that power and be diligent. We have a duty and an obligation to the public to expand our investigations; to diligently pursue Commissioners' charges; to issue subpoenas when necessary; and to expeditiously and robustly address the employers' petitions to modify or to revoke those subpoenas. Time is of the essence in these cases. It is also extremely important when looking at charges and doing intake to identify these hiring issues and expand investigations to address them as soon as possible.

For example, although we may not always have a worker who comes to us who knows that she has not been hired because she's female; we may have a worker who comes to us and tells us that she was selected for termination and explains to us in the course of the narrative that, by the way, she was one (1) of only two (2) women there, and it just seemed strange that when it came layoff time, the two (2) women were selected. This should send us the message that there is a hiring problem, depending on the circumstances. Typically, there is a hiring problem here. This may also have come up in the context of a harassment charge where someone comes in and talks about the fact that he or she was one of very few African-Americans in a workplace and therefore was taunted or targeted. Again, we should get the message that this requires us. We have an obligation at that point to expand and look at whether this harassment stems from the fact that there were too few African-Americans hired. Why is that? We must diligently pursue the data, the hiring data, and find out why and how and then swiftly move to enforce our laws.

Very quickly, just to piggyback on something that our Director from the Memphis office says, I agree that reporting requirements for temporary agencies are critical. That is that they should be required, in my opinion, to report the race, gender, age, and other protected status of those whom they place and to whom they place those workers. In other words, in my view that data in the aggregate would not be very helpful to us, because our experience in the field leads us to conclude that with temporary agencies; if we just got the data in the aggregate, it would mask those situations where particular employers and communities are the ones who are consistently asking for discriminatory placement. So it is crucial that we have some transparency in the placement of those workers and that we know the names of the companies to whom they have been referred. That is the only effective means of us being able to effectively detect patterns and discriminatory referrals.

In 2007, the EEOC brought a complaint against Area Temps, a temporary placement agency, and Ms. Lopez-Rodriguez will tell you about her experience working at Area Temps. We also brought a record-keeping violation because the records, important records, were destroyed concerning hiring.

I wanted to just pause for a moment before Ms. Lopez-Rodriguez talks about the facts to say that although we did obtain very good monetary relief for our class, we are -- I am particularly proud of some of the injunctive relief that we obtained. Seeking and obtaining injunctive relief is an essential part of what we do, and as a private practitioner who worked only in plaintiffs' employment discrimination law firm my whole career, I am thrilled and honored to be able to obtain injunctive relief for the public.

In the consent decree, for example, we required testing, and Area Temps agreed to subject itself to unannounced and periodic tests during which a third party, posing as a customer, would contact Area Temps and request temporary workers of a particular race, gender, national origin, or age. And following each test, written results would be provided both to us and to Area Temps. We have thus far received some testing reports in conjunction with this consent decree and are pleased to find that requests for discriminatory workers were soundly rejected.

As you will soon hear from Ms. Lopez-Rodriguez, Area Temps like -- Area Temps employees like herself were frequently pressured to comply with discriminatory requests. We could not have discovered, investigated, litigated, and resolved this case without Ms. Lopez-Rodriguez and without colleagues like her who were brave enough to come forward and to tell us the truth. And so I am honored to introduce her to you, and please give her your thoughtful attention.

CHAIR BERRIEN: Thank you Ms. Boehringer, and I realize that I did not actually explain or mention -- may not have mentioned the warning lights at the beginning. You will get a yellow light when you basically have a moment -- a minute left, so please keep an eye, and then the red light comes on when time's expired. Thank you. Ms. Lopez-Rodriguez.

MS. LOPEZ-RODRIGUEZ: Good morning. Thank you for having me here and letting me tell my story. I worked for Area Temps from approximately June 2004 through April of 2005, and I started as a temporary worker. I had applied there for a position and was hired in for their company specifically and was quickly promoted to inside sales.

In inside sales, it's involved in placing the temporary workers to the various job sites. Area Temps maintained a database listing available workers. Companies called Area Temps when they needed workers, and they asked Area Temps to refer people from its database for employment. Sometimes the employment opportunity was temporary. However, there was a chance to be hired as a permanent worker at that company.

We were instructed to assign workers to particular jobs or send workers to particular companies based on race and gender. We were told that it was necessary, for example, to select only males for certain jobs, females for other companies. Management told us that the most important thing was to select the right kind of worker for each customer, even if it meant going along with the customer's discriminatory preferences. Management said that such practices were not illegal, because we were simply giving our customers what they wanted.

The Area Temps took photographs of all of the temporary workers or applicants that came in. We were instructed to use the photographs to place them. We were not allowed to select someone from the database unless we first reviewed the person's photograph, and if there was no photograph, we had to ask our coworkers if they remembered what the applicant looked like. If there was no recollection, we were not allowed to send that person out to work, even if they were qualified.

At Area Temps instructions to assign workers based on discriminatory preferences were communicated using code words, abbreviations, and references to certain types. The assistant in selecting coworkers for assignments was given a Rolodex full of cards. This Rolodex was passed down to me from previous inside sales coordinators that were probably promoted to outside sales coordinators.

Each card identified a different company that was an Area Temps worker customer. Some cards in the Rolodex were marked with abbreviations indicating which kind of worker Area Temps was to provide the company. For example, some cards were marked with a W, which meant white. Other cards had similar codes with B, which meant black workers, WM for white males. Another code used in the Rolodex was the small -- was the phrase "small hands," which usually meant sent out females to deal with the small manufacturing parts. An Area Temps manager taught me that using the phrase "small hands" meant that the female should be sent to that job. Management also instructed us to select workers based on race and gender by using code words or other phrases. I had a manager come to me and say, "Send a worker like you and me," which meant conservative. It meant to select a white worker. The phrase, "vanilla cupcake" was used at Area Temps to indicate the need for a white worker, and "chocolate cupcake" was used to refer to black workers.

Managers also instructed us to, you know, select based on race and gender, for example, select males for jobs in shipping and receiving, for jobs that involved heavy lifting. Conversely, we were told to select females for packing or inspector jobs.

On one occasion, one of my colleagues suggested a qualified female for a shipping and receiving job, and management refused the suggestion, remarking that the female was not the type that Area Temps wanted. On another occasion, management yelled at me for selecting a black worker for a particular job that told me the company called to complain that I sent them a black worker. However, the black worker was not sent back.

The pressure to go along with these practices at Area Temps was intense, and the demands to the job were heavy. We were constantly pressured to satisfy customers quickly and without complaints. In some circumstances, we were not allowed to leave the workplace until we had filled all pending requests, and I needed the job to support my family.

During the course of my employment at Area Temps, I became aware that a complaint had been filed with the EEOC. In late March of 2005, an Area Temps manager told me that an EEOC investigator would be visiting the office at the end of the week. We were told to check our Rolodex cards to make sure we had no code words written on them, and if they did, we had to rewrite them without the code word.

She also told me that the EEOC requested information on me. She seemed worried and wanted to know if I had spoken to the EEOC, which at the time I had not. And even though Area Temps told us that the practices were illegal -- were legal, I knew it was, at the very least, not right to select workers for particular jobs based on race and gender or even if the customer demanded it.

I decided not to change anything in my Rolodex that week, and I left the coded cards there for the EEOC investigator. However, management took out those Rolodex cards, because we were sent home early, and management stayed behind. So, in the morning, when I went back to work, the Rolodex cards were missing that I had left there purposefully for the EEOC to find.

One week later, Area Temps retaliated and fired me. Management discovered that I had left my coded cards in the Rolodex and in doing so refused to help them conceal the evidence from the EEOC. They suspected that I was cooperating, and as a result, I was fired.

I was afraid to oppose the practices of Area Temps, because I didn't want to lose a job that I badly needed to support my family, but in the end it was worth it. In refusing to help Area Temps destroy evidence of discriminatory practices, I stood up for what was right. Thank you.

CHAIR BERRIEN: Thank you Ms. Lopez-Rodriguez. We'll turn now to Diane Smason from the Chicago District Office of the EEOC.

MS. SMASON: Good morning everybody. I'm very honored to be here today. Thank you for inviting us to speak about our Scrub case in Chicago, which we're very proud of. I have been with the Commission since January 1998 and have been a supervisor since 2004. I've had the privilege of supervising the Commission's lawsuit against Scrub, Incorporated. It's a janitorial company that provides services for various entities throughout the Chicago land area, including for the City of Chicago and O'Hare airport.

In our lawsuit, EEOC alleged that Scrub discriminated against African-American applicants for janitorial positions, the vast majority of which were at O'Hare. EEOC filed suit on July 15, 2009, based upon a charge filed by Jeannette Wilkins, who is here with me today to testify about her personal experience in applying for employment at Scrub.

EEOC's complaint alleged that Scrub discriminated against a class of individuals based on their race, black, and national origin, African-American, by failing to hire them into entry-level janitorial positions. We alleged discrimination through disparate impact based on subjective hiring and disparate treatment.

With respect to disparate treatment, we alleged that Scrub's subjective decision-making provided a ready mechanism for intentional discrimination and that Scrub recruited through media directed at Eastern European immigrants and Hispanics. We also brought a claim for failure to file EEO-1 reports.

There were approximately 5,000 unsuccessful African-American applicants during the relevant period, October 2004 through December 2009, and EEOC ultimately sought relief for about 550 of them who expressed interest in participating in the case.

Based on her experience applying at Scrub, Ms. Wilkins had a very strong suspicion that Scrub was discriminating against African-Americans. Through the development of evidence during our investigation and ultimate litigation, EEOC discovered that Ms. Wilkins' suspicion was very well founded. We quickly learned that Scrub had a history of discrimination against hiring African-Americans.

The Office of Federal Contract Compliance Programs had previously found that in 2003 and 2004, Scrub discriminated against African-Americans in hiring. Under their conciliation agreement, Scrub was required to change its hiring practices, but Scrub failed to do so by its own admission, because it believed it had done nothing wrong. EEOC had both excellent anecdotal and expert evidence to support our claims in litigation. Scrub's former HR manager came forward and testified that the president of the company yelled at her for hiring too many "N-word" and then fired her shortly thereafter. The president told the HR manager that Scrub is a Polish company and that she needed to recruit more Europeans and not African-Americans. When the HR manager recruited from an African-American community, she was reprimanded by the president.

We also heard from a claimant that when she applied at Scrub's office, Scrub denied her request to use the restroom and told her that she needed to use the restroom at a gas station down the street. At the same time, though Scrub permitted Hispanic applicants to use the restroom.

EEOC's expert labor economist, Louis Lanier, opined in a written report and a deposition that the statistical disparity in hiring rates between African-American applicants and non-African-American applicants was so high that there was effectively zero probability that Scrub's failure to hire African-Americans occurred by chance. Dr. Lanier opined that when compared to the relevant labor market segment, there was a shortfall of 828 African-American hires. That's statistically significant at 24.6 standard deviations. When the African-American hire rate at Scrub was compared to applicant data provided by Scrub, there was a shortfall of 394 African-American hires, which is statistically significant at 14.3 standard deviations.

Scrub was unable to provide any non-racial explanation for this great disparity. Indeed, Scrub's own expert, Dr. Malcolm Cohen, opined that when the African-American hire rate was compared to Scrub's applicant data, there was a statistically significant disparity but to a lesser degree of significance than that asserted by EEOC's expert.

The case was ultimately resolved through the entry of a consent decree on November 9, 2010. The terms of the consent decree are extensive and required creativity in that it was important to EEOC to make sure Scrub would finally stop discriminating against African-Americans and offer jobs to our class members.

Scrub agreed to a monetary relief of $3 million, which will be paid out over a period of three years. The decree, which lasts for a period of four years, includes substantial non-monetary relief. And like Kate Boehringer stated, you know, we, too, focus a lot on the non-monetary relief to prevent future discrimination, and we're very pleased with the kind of injunctive relief that we obtained. The key provisions were an injunction against discrimination on the basis of race or national origin and retaliation. Scrub had to revise its employment practices with respect to recruiting, hiring, and its complaint procedures. There was a requirement that Scrub offer make whole instatement relief -- that is, jobs -- to eligible claimants who were actual applicants and were rejected for hire because of their race, but who still wanted a job. Specifically, for every third opening, Scrub is required to hire an applicant from a list of eligible claimants.

After the instatement list is exhausted and in order to correct Scrub's long record of discrimination, going forward, Scrub's hiring is supposed to look more like its pool of actual applicants. The company will therefore be exercising its best efforts to hire blacks at the approximate level that they are actually applying.

Scrub must also engage in recruiting efforts through specified media outlets targeting the African-American community. Specifically, Scrub is required to advertise monthly in certain African-American newspapers, attend job fairs in African-American communities, and provide notice of open positions to certain agencies which EEOC identified that assist African-Americans in obtaining employment.

Scrub is required to provide annual Title VII training by an outside provider to all employees who are involved in the hiring process. Scrub is required to post a notice of the decree in its office in prominent and conspicuous locations that applicants frequent. And Scrub has to maintain and make available to the EEOC and the consent decree monitor all applications for employment and other documents relating to its applicants, its efforts to recruit African-Americans, and documents relating to any applicant complaint of race discrimination or national origin discrimination.

I mentioned the consent decree monitor, and that was a very important piece in our consent decree. There is a consent decree monitor appointed by the court who will oversee Scrub's implementation of the hiring relief. The monitor must provide a written report to the parties and the court every six months with respect to Scrub's progress in implementing the decree.

The bulk of the monetary recovery was divided evenly among all EEOC claimants such that the average payment was approximately $5,500 per person, which is the approximate back-pay to which each claimant was entitled, assuming that he or she had been hired and worked at Scrub for about a year. We agreed that Scrub could pay the $3 million over a period of three years. It was contingent, however, on an agreement that all future payments would be personally guaranteed by Scrub's owner.

The Chicago District Office is pleased and proud of its litigation and settlement of this case. We hope that this lawsuit will send a message to employers that making hiring decisions based on race or national origin is against the law. We also hope that our efforts will provide real job opportunities for people of all races at Scrub.

Finally, I would like to acknowledge the teamwork that went into investigating and litigating this case. Our investigative team consisted of Investigator Louis Rodriguez, our Lead Systemic Investigator Andrew Daley, and Supervisory Investigator Monique Debusmann.

Our legal team was headed by our lead Trial Attorney Laurie Elkin, and included Trial Attorneys Ann Henry, Brandi Davis, Paralegal Kimberly Braden, and Clerical Latricia Phillips. We could not have accomplished such terrific results without the hard work of these dedicated staff members of the Chicago District Office, in addition, of course, to the leadership of District Director Jack Rowe, Deputy Director Julianne Bowman, Enforcement Manager Patricia Jaramillo, and Regional Attorney John Hendrickson. Thank you very much for inviting us here to speak with you today.

CHAIR BERRIEN: Thank you Ms. Smason, and now Ms. Wilkins.

MS. WILKINS: Good morning. My name is Jeannette Wilkins. I am the charging party of the EEOC case against Scrub. I have been asked to share with you my personal history in connection with the Scrub case.

I applied for a janitorial position with Scrub in August 2005. At the time that I applied to help -- wait a minute. I applied. I had been out of work for about a year. I had been laid off from my previous job, where I had performed cleaning duties for at least five years.

Around August 10, 2005, I saw the Hispanic newspaper, and Scrub was hiring for janitorial positions. The advisement said that Scrub was hiring 15 men and 15 women and directed applicants to apply at Scrub office in Chicago. Because I was out of work and had experience in janitorial position, I was interested in the job. I had told a friend of mine that Scrub was hiring, so she also went.

On August 2005, I went to Scrub to fill out an application. While I was there, other applicants were filling out applications. She appeared to be Hispanic. When the Hispanic woman turned in her application, she was asked to stay for an interview, and I was told that I needed to have a birth certificate to apply. So I went home and got my -- I went home and got my birth certificate and came back. Then I was told that they had no more applications. When I gave her my resume, the receptionist told me that I would be called if they were interested in me. I was told that -- okay, I thought it was odd that I was not asked to stay for an interview, since I knew that I was qualified for the job.

My friend who I had worked with -- my friend, who I had told about the job at Scrub, the next day, she went to apply for the job. She had a similar experience. The receptionist took her application and told her that someone would call her from Scrub if they were interested in her. While she was there, there were four Hispanic women and Hispanic men filling out the application. All five of them -- all five of the other applicants were asked to stay for an interview. Based on the experience and the experience of my friend, I believe that Scrub discriminated against me based on my race. I was qualified for the job. They had 15 spots to fill, and they seemed to be interested in only Hispanics. I called Scrub to ask why I hadn't heard -- had a interview. The person who answered the phone told me that she could not discuss the matter.

Feeling that I was discriminated against with the EEOC -- discriminated against, I went to the EEOC -- sorry -- on August 16, 2005, and filed a charge of discrimination. I was interviewed by the EEOC investigator and kept informed of the EEOC investigation. I learned that the EEOC was going to file a lawsuit in the federal courts and seek relief not for only me but for other applicants that had been denied employment by Scrub because of their race.

During the course of the investigation, I spoke to the EEOC attorney about the status of the case. In November 2010, I learned that the case was being settled. In addition to receiving a mandatory sum under the settlement agreement, I was offered a chance to be considered for a job at Scrub. Unfortunately, I was unable to accept the position but appreciate the offer.

CHAIR BERRIEN: Thank you very much. Thank you to this panel, and we'll turn now for questions and comments from the members of the Commission beginning with Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Great. Thank you Madam Chair. I want to thank the panel. I especially want to thank the two (2) charging parties. I know how hard it is to come in front of a body like this in a public meeting and tell your story, not easy. And it's not easy to tell your story to the EEOC, to go forward that way. So my thanks to both of you for coming here today and for coming to us to bring your charge to us. It is very helpful, and a lot of this people don't know. They don't see. They don't put the pieces together, and it sounded like for you, Ms. Wilkins, there were a lot of pieces there that you had to put together, but finally there was enough there that it almost forced you to go forward to the EEOC, so thank you for that.

Ms. Boehringer I just want to be clear that the client of a temporary agency who asks for certain types of employees is not immune from liability by going to a temporary agency.

MS. BOEHRINGER: Absolutely not. Absolutely not. In fact, you know, we have a case pending in Cleveland. I can't talk much about it because it is current litigation, but against an employer that did rely heavily on placement agencies. And if we encounter a situation where an employer has relied on temporary agencies and issued directions to seek workers based on any protected status, we have a duty to investigate that and to move forward if it can't be conciliated.


MS. BOEHRINGER: Absolutely, they are equally liable.

COMMISSIONER ISHIMARU: Right. Right. No, I just wanted to make sure that we weren't sending the message because you used a temporary work agency or a contingent worker situation that the underlying employer would be immune from liability, because they weren't actually employing the person, but they would have similar liability.

MS. BOEHRINGER: Absolutely.

COMMISSIONER ISHIMARU: If we found something, we would -- we would go after them.

MS. BOEHRINGER: Absolutely. We have an obligation to -- when we're presented with such facts, we have an obligation to look at all the actors, and, as I said with reference to expanding investigations, we, in my view, perform the most important public service when we look at issues that arise during an investigation, not just individuals. So we look at all actors and all issues, we must.

COMMISSIONER ISHIMARU: Thank you. Ms. Smason, two questions for you. One, I was intrigued by your -- during the course of the litigation against Scrub that you found that the Office of Federal Contract Compliance Programs had already found a violation. Can you talk about the interaction that you had with OFCCP once you found out about it, and did they do anything about it, and might that change going forward? That's my first question.

The second question is, you also talked about an outside monitor for injunctive relief. Could you talk about that, as well? You know, my question generally for these cases is, how do we make sure that it's happening going forward? How do we guarantee that that happens? Do our people do it? Do you get someone from the outside to do it? If you could talk about that in both the Scrub case and in your cases generally, that would be helpful.

MS. SMASON: Sure. With respect to your first question, OFCCP, we actually did not have much contact with OFCCP, and I don't recall now how that first came to our attention. We did find out, though, that there was some monetary settlement, but it was very nominal, and from our perspective we thought, okay, obviously, that wasn't enough. So it was very important to us to make sure that not only were we sufficiently compensating the claimants but that it was a settlement that would mean -- a monetary settlement that would mean something to Scrub, that they would pay attention to, because the one with OFCCP was not.

And I am not familiar with what, if any, non-monetary relief they obtained, but clearly there was no -- if there -- if there were requirements that they had to change their practices; there must not have been any enforcement mechanism, because they didn't change their practices. So that also resulted in us being insistent that we make sure they do change their practices now and take our case seriously, because it seemed to us that they had not taken seriously their experience with OFCCP, unfortunately. So then that kind of goes right into the issue of a monitor. Excuse me. It is not an uncommon practice for us to use a monitor as part of a resolution of a case. However, it's not -- it doesn't happen in every case. It depends on the facts of the case.

A case like this, where we knew for years and years this company had been engaging in hiring discrimination and had essentially ignored another federal agency in this respect; we knew that we needed some very strong injunctive relief and enforcement mechanism. So that's why we turned to a monitor. What we did was we selected -- it's a person who is mutually agreed upon by the parties. We made a suggestion about an attorney in the defense community in Chicago, and Scrub talked to him, interviewed him, and they approved, so that actually went very smoothly. Had they not, we would have then discussed further who else we could have gotten, and we would have listened to a suggestion of theirs, but that worked very well. And this individual has been involved already, even though it's only been six (6) months or so, in overseeing the enforcement of the hiring provisions. So we have actually, since the settlement, we have requested some hiring data pursuant to the consent decree. He has requested some hiring data pursuant to the consent decree. We've pointed out some issues that we've had that we're concerned with. He's following up on them.

And the consent decree does say that ultimately if we cannot resolve something with the consent decree monitor, we can go into court and seek further enforcement. We are hopeful, though, that we'll be able to work out any issues that we have through the monitor. And it's a nice way to have kind of a neutral person help us resolve any issues going forward and make sure that we are getting the enforcement that we sought.

COMMISSIONER ISHIMARU: Well, thank you very much. As a thought piece going forward, you know, does it make sense as a matter of course to ask for a monitor to free up our people from having to constantly monitor whether injunctive relief is actually happening? That may be something we would want to think about as a policy matter, and I'll talk more to my friend the General Counsel as we go forward. Thank you to the panel. Thank you Madam Chair.

CHAIR BERRIEN: Thank you Commissioner. Commissioner Barker?

COMMISSIONER BARKER: I want to echo Commissioner Ishimaru's thanks to all the panel members and, again, especially to the two (2) charging parties, because I agree with the sentiment, it's very difficult to come, you know, to travel distance and appear before a strange panel like this. And we're a strange panel. I think we'd all agree. You know, I loved hearing all your testimony, but I think my questions kind of center for Ms. Smason. Several questions. First of all, I think it might be important to make the point that when it is appropriate to use a monitor -- I agree with you, in this case, it certainly seemed appropriate -- that also involves or can involve significant additional cost to the company, because they're paying this person who's generally not -- he's somebody of -- he or she is someone who is experienced. Sometimes they're retired federal judges, for example, and it's a, you know, pretty hefty hourly fee usually, so that in itself can be really effective injunctive relief to a company. But I'm just curious. Based on what you've said about this company, what conclusion did you draw as far as -- you said it was a company owned by a -- I think you said it was Polish-owned, so a different nationality. Do you think that they thought that because they were of a certain nationality that they were immune from this, or what was going on?

MS. SMASON: Yes, I think that's right, and when you at the beginning in your opening statements commented about new business owners coming from other countries not being very familiar with American laws and not realizing that they apply to them, I immediately thought of Scrub. I think that was exactly right on target that this was a Polish-owned company, and I think they thought it was okay to hire their own, so to speak, and that it was okay to do a lot of word-of-mouth hiring, which is not uncommon. But the end result of that was that they were not hiring many African-Americans specifically. They did hire Hispanics, but not as many African-Americans, and I think they viewed them as different and other and not like them, and I think that was a problem. And I think you hit it right on in the very beginning with your comments that, especially new business owners from other countries don't quite understand that our laws do apply to them and that what they might thing seems normal and fine -- we'll bring in our friends and family and friends of friends -- can then have an effect on other minorities, a negative effect on them in terms of getting jobs.

COMMISSIONER BARKER: Ms. Smason, is it something that in the Chicago District Office that you all have seen a lot of?

MS. SMASON: Yes, it's not uncommon. We have had several cases along these lines over the years where it's essentially kind of word-of-mouth hiring, and, you know, is that unlawful? Is it not? It's very common. People do it all the time in all areas of business, but ultimately the effect here was so severe that African-Americans were effectively just being shut out. So that was a problem, and we have seen cases like that over the years, and we think it's important to enforce the laws against those companies so they understand. Perhaps they don't, but then they will hopefully understand that that kind of hiring can have -- can cause problems.

COMMISSIONER BARKER: And the reason that I ask that is because I've noticed a number of these types of cases that Chicago has identified. And I didn't know if it was something that was particular to that area or something that your office is particularly attuned to or what, but there seemed to be a number of cases that are, you know, generally smaller companies owned by a particular, you know, ethnic group who seemed to feel that they were immune from the discrimination, especially hiring laws.

MS. SMASON: I don't know that I can say that we've identified any particular ethnic groups where this has been a problem over the years. I mean, we have had a few --

COMMISSIONER BARKER: I didn't intend to imply that.


COMMISSIONER BARKER: There just seemed to be different ethnicities.

MS. SMASON: Different than what? I'm sorry.

COMMISSIONER BARKER: Various ethnicities that your office has identified.

MS. SMASON: Yes, and, you know, I don't know if that's a function of the community we live in. Chicago is an extremely diverse community with large ethnic populations, very large Hispanic, very large Polish communities, very large African-American community, as well. So I'm not sure if that's a function of where we live. It's definitely, though, something that the Chicago office is aware of and does look for in cases and does focus on.

COMMISSIONER BARKER: Thank you very much.

MS. SMASON: Thank you.

CHAIR BERRIEN: Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you. Thank you to everyone on this panel. This was really great. I have one question for the two charging parties and then one question for the two attorneys. It seems in terms of hiring that you either have a problem where you've got the person at the top that actually wants to discriminate and then is sending that message out. And so for that, once we hear about it, I think we know what to do. It's very clear, but what we need is for charging parties to come forward. So my question to each of you two is, you know, what do you think we can do to help let folks know the importance of coming forward and how to make it easier to come forward? So that's the question to the two of you.

The question for the two attorneys, the other type of situation is where the top management does not want discrimination to be happening, but you've got managers and front line people, you know, who are discriminating. For the record, by the way, I actually don't think the right answer is to have damages assessed against those. I mean, I've thought about it, but, you know, I don't think that's the best, but I am curious about what sort of ways of accountability, legal or extra-legal, you know, can be applied so that those front line folks feel the accountability when, in fact, the top line folks are, in fact, saying don't discriminate.

Let me start with the -- because you guys both did come forward in really phenomenal, remarkable ways, and you have helped so many other people. How do we have other people act like you did? So I'll start with Ms. Wilkins and then Ms. Lopez-Rodriguez. MS. WILKINS: Yes, I feel that the only way to -- the EEOC, in order to get help is for someone to say something. If you don't say anything, people don't know that it's going on, so as long as you carry yourself in a professional way and you know that you're doing the right thing and you're reliable and you can do the job or whatever and go forward, and then it's a problem. Other than that, it's no way that they can help if no one comes up and say anything.

COMMISSIONER FELDBLUM: And do you think saying that out in the community over and over again, there's no way we can help unless you come forward, do you think that can be helpful?

MS. WILKINS: I believe that it's been said a lot for different jobs that you have discrimination, that if you have a problem, call this number or you can get in contact with this person. All you have to do is put yourself forward and do the right thing and then turn it in and see what happens.

COMMISSIONER FELDBLUM: Yes, Ms. Lopez-Rodriguez?

MS. LOPEZ-RODRIGUEZ: I think in my instance, education is key. When instructions come from the higher management positions and you think it's okay, it's better to have that education from before you even get the position to say, well, that is not right. Even though you're a manager, I know that you are not correct. And I think a lot of employees out there who are not in those management type positions don't know the law. They don't know what to do in that case, and I think that the information being supplied to them is what's needed.

COMMISSIONER FELDBLUM: Great, okay, so, now, assuming that we're not assessing damages against individual people, what ideas do you have in terms of enhancing the accountability?

MS. BOEHRINGER: Well, there are some things that we do in situations where, for example, the employer has a policy, they have done training, but it has not worked. Some ideas that we have worked into consent decrees have been to require at training sessions the top brass to come to the meeting. You know, often employers tell people that they're against discrimination, and they tell their managers not to engage in that kind of conduct. But sometimes there's a tacit understanding that nothing bad is going to happen to you if you do it, and it's really in the company's, often, bottom line, economic interest, unfortunately. So we have worked into the decrees that the top CEO has to come and personally address the group and express his or her commitment to the policy and not just say it's on paper, not just say, it's part of our handbook, but that, I want to see you face-to-face three times a year while this decree is pending, and I'm going to tell you personally how much this offends me.

COMMISSIONER FELDBLUM: Okay, let me just stop, because I've got --

MS. BOEHRINGER: So that kind of thing I think is helpful.


MS. SMASON: We have done that, as well, what Kate suggested. Another thing that we've done on occasion is we have requested that part of an employee's evaluation include diversification efforts. And that would be a way, as you pointed out earlier, to try to hold these maybe lower level supervisors accountable so they know that part of what they're going to be evaluated on when they get their annual evaluation or six-month evaluation is how well they have engaged in diversity efforts if, for example, that's part of their job.

COMMISSIONER FELDBLUM: Great. Thank you so much.

MS. SMASON: I would suggest that, as well.

COMMISSIONER FELDBLUM: Really to this whole panel, thank you.

CHAIR BERRIEN: Thank you. Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you Madam Chair, and I also want to express my thanks to the panel and especially to the charging parties for being with us today and telling us your stories and your experiences. I think I want to start with Ms. Lopez.

If you could tell us a little bit about -- I'm so interested in sort of, you know, how this chain from the customer who is perhaps expressing some client or some particular preference all the way down to someone who -- I think in your position you're the one who is actually trying to provide the customer with -- trying to provide them with the individuals for whatever their position was. So can you talk a little, tell us a little bit about, you know, how explicit or non-explicit, you know, those preferences were being expressed, you know, sort of up and down that chain?

MS. LOPEZ-RODRIGUEZ: To my knowledge, those preferences were submitted to our outside sales group. Our outside sales coordinators were to go get business from employers that needed employees. We were not -- we did not have contact with the customers in particular to know what they were looking for, what type of applicant they wanted. All of it came from our outside sales coordinators, and from there they were -- they were the ones who informed the inside sales coordinators, this is the type of applicant I need.

COMMISSIONER LIPNIC: And then you had a pool of people to --

MS. LOPEZ-RODRIGUEZ: I had a database. As mentioned before, there were pictures of these applicants, so you knew what type you were sending, what they looked like, whether they were black, whether they were white, female, male. And we were supposed to look at the history of these companies and who we had sent out before to let us know, okay, I have the right applicant now.

COMMISSIONER LIPNIC: And Ms. Boehringer can you talk a little bit about in terms of -- this is to follow up a bit on Commissioner Ishimaru's question about the potential joint employer liability and either in the course of this case and investigation or even in others just the difficulty of -- I assume that a staffing agency has lots and lots of customers and is trying to get lots of business from many employers and just the difficulty for the EEOC as an Agency to try to investigate something that potentially -- you know, if these preferences are being expressed by other employers, the difficulty for us.

MS. BOEHRINGER: It is very challenging, which is one of the reasons I think reporting for temp agencies is key. There's no other way to get at that information. You know, it's important for us when this does come to our attention to act swiftly and investigate any employers who are making these kinds of requests. But it is very challenging in part because, you know, the community, this is, in many ways, very well understood in the community, which employers employ certain kinds of people. As Ms. Lopez-Rodriguez said, they were instructed to sort of look at the pattern of who had been placed there before and just keep sending the same kind. So you have this sort of history of just status quo, in many circumstances even unsaid, unspoken, just sort of, well, you know what type to send. And everybody knew, because they had the database.

COMMISSIONER LIPNIC: And can I ask? And, actually, this is sort of a question for all of you and, Diane, for you, too. Do you find that to be industry-specific?

MS. BOEHRINGER: I'll let Diane talk first, since I've been talking so much.

MS. SMASON: To some extent, yes. I mean, certainly manufacturing jobs, that is not uncommon at all that there are certain jobs that are considered to be jobs for men and then certain ones that are considered to be jobs for women. We just recently settled a case against a company that segregated men and women that way. There was a department that was considered the dirtier, messier department. It required some more heavy lifting, and it was just understood that women would not be put into that department.

Then there was another department that was less dirty and messy and didn't require as much heavy lifting, and that's where the women went. And, sure enough, there was virtually no cross-over between genders in those two departments. So we do see that a lot in manufacturing jobs. That's the first thing that really jumps to mind.

MS. BOEHRINGER: I confess I have seen this segregation and assignment type bias in hiring everywhere. I can't -- I was sitting here trying to think of an industry that, you know, I have not, either in private practice or working for EEOC, where I have not seen an employer make placements or selections or requests for people in certain areas which they believed matched the public's expectation of what kind of worker you would see in that context.

We did, in the -- in this particular case, we did have evidence that there was a lot of manufacturing, and I think Ms. Lopez-Rodriguez's written comments address that, but in the testing that we implemented in the consent decree, there was an effort -- I don't want to give away too much, because it's ongoing, but there has been an effort to break out of that and make sure that we're seeking -- that they're posing as customers from different kinds of industries so that we're not just keeping our focus on one small area. It's been my experience that this is a widespread practice across industries.

COMMISSIONER LIPNIC: Okay. I see my time has expired. I have many more questions for all of you, which I will follow up individually, so thank you very much.

CHAIR BERRIEN: Thank you again. I certainly share the sentiment of all of my colleagues about how useful your testimony is and how important and recognize how courageous it is to come forward both to file a charge and to be here with us today, so thank you, particularly Ms. Wilkins and Ms. Lopez-Rodriguez.

Ms. Boehringer, could you please talk a little bit about other aspects of injunctive relief that were part of the Area Temps decree?

MS. BOEHRINGER: Yes and I had so little time, and I wanted to say so many things.


MS. BOEHRINGER: One of the other things we did that was so important -- thank you for asking -- was controls about the use of photographs and access to photographs. So the consent decree, for example, part of the consent decree requires Area Temps to maintain a database, because we had a record-keeping problem here, of all the workers, where they've been assigned, what their gender, race, et cetera, ID is. Now, the consent decree allows only Area Temps staff who are responsible for preparing that database to have access to photographs of workers and then only after they've been placed on assignments. Additionally, so those who select people, like Ms. Lopez-Rodriguez, are not allowed to have access to photographs in the database. We recognize we need it for reporting purposes in the consent decree, but there is a prohibition against those selecting having access. There is a requirement that Area Temps prepare or, I guess, use security measures and describe to us what those security measures are to make sure that the staff members who are involved in selection do not have access to the photographs.

Additionally, we wanted to make sure that those who -- that Area Temps invited those from all walks of life to come in its doors and seek placement. So they are required to send out applicant recruitment notices to 19 different organizations in the area that are associated with diverse community to try to diversify and broaden the applicant pool, for example, sending a recruitment notice every three months to the NAACP saying, please invite. Come one and come all to Area Temps, essentially, and seek work with us. We are an equal opportunity employer. And in addition, of course, we have notice postings, and we also required them to send letters to all of their customers that were personally signed by the president saying, if there was ever any doubt, folks, that we were not opposed to this kind of practice, we are. And, by the way, if any of the Area Temps people ever offers any of you good customers a placement based on any protected status, you must call me directly, signed by the president, provides his contact information. So we have some personal, like I said, I mean, I think the face-to-face, the personal accountability I have to believe matters, and so we wanted to really put a face on the relief, as well. So their customers have been notified and have to be notified every so often of their continuing commitment. The community has to be notified of its commitment to employing minorities, placing minorities. And then they cannot, of course, use the photographs as a selection tool or even allow their staff full access to them. So those were some additional things that we tried to design to prevent this from happening, and if it does happen, we can detect it.

CHAIR BERRIEN: And I'll direct this really to both of you, but I'll start with Ms. Smason. The relief you've described is very extensive and tries to reach and correct the practices of those employers.

To what extent do we let other employers know, through our training programs, our outreach and education efforts, or otherwise about the things that happen in these cases, because my hope would be that we might, for every one case like this that we litigate and resolve, that we might be able to prevent many, many more? So I'd like to know if it is something that we are incorporating and if you think we should.

MS. SMASON: Well, I think we do issue press releases when the case -- when our cases settle, and I think that's something that we take very seriously about using as a means to notify the public and get the message out that, here's a case that settled, and here are the terms under which it settled. And, as I understand, I think those are on the EEOC's website pretty regularly. And, I mean, I'm told by defense counsel who I work with on other cases that they're very familiar with the consent decrees in our cases. I think the defense community talks amongst themselves about what kind of settlements different companies have gotten, and so they become familiar with or hopefully will become familiar with the kind of relief that we seek in a case like this. They -- it is not uncommon for them to check out our press releases on our website. So I think that's very important, and then the consent decrees are all in the public record. And so that, too, is very important that we make sure all our settlements are made, you know, in the public eye so that people know what we're doing and companies then get some message or warning that this is what happens if we don't follow the laws, or this is what could happen.

MS. BOEHRINGER: Gosh, I hope all of that works.  I mean, you know, I wish I had a magic answer just to say that one of the things that we do is we just go out and talk to people, I mean, you know, legal aid organizations. We just get out there and just try to get the word out constantly of what we're doing, what our cases -- how our cases have resolved, and try to -- but, you know, those are -- it's my experience that cases like Scrub, you know, many of the others, the Chicago District Office's, of course, send a very strong message to employers of the seriousness of what we do.

CHAIR BERRIEN: Thank you. I noted in Ms. Wilkins' testimony that she mentioned the ad said that 15 men and 15 women were needed. And at least one thing that might highlight, as well, is possibly monitoring ads, because we often say that practice no longer exists, and it was illuminating to hear that maybe it isn't gone from the landscape.

Again, thank you all very much, and I think we all share the frustration of time limits here, but we appreciate all that you've offered us in that time, and your record -- your statements will be in the record, as well. Thank you.

We'll bring up Panel 3. Okay, thank you. Our third panel, final panel of the day, consists of Dr. Mark Bendick from the firm of Bendick and Eagan Economic Consultants, Incorporated here in Washington, and attorney Rae Vann, General Counsel of the Equal Employment Advisory Council, also here in Washington. And although no plane fare was required, given the traffic across town sometimes, we know that you, too, have traveled to be here, and, of course, we thank you in advance for all of the work and time that has gone into being here today. We will begin with -- we're going to begin with Dr. Bendick.

DR. BENDICK: Thank you Madam Chair. My trade is that of employment economist, and I am here today to offer a researcher's perspective on disparate treatment in hiring. My summary of research will focus on two questions, namely, what is the prevalence of these problems today, and where are they concentrated?

Private employers nationwide decide who to hire more than a quarter of a million times every work day. Unfortunately, this vital employment process is particularly vulnerable to bias. Social science research teaches that hiring decisions are typically -- that hiring decisions are made with only limited information, under time pressure, by managers with little training on proper techniques. Those circumstances create the perfect storm for bias problems to arise.

Since the 1960s, of course, the nation has come a very long way in improving employers' hiring practices, and EEO law, in combination with evolving social norms and with a very important role by the EEOC itself, have contributed very importantly to a sharply diminished prevalence of discriminatory hiring behavior, especially conscious behavior.

Researchers measure that progress in a variety of ways. For example, it reports that women now constitute 51 percent of managerial and professional workers and minorities more than 22 percent, which is a very different situation from the time when essentially every woman or minority in such positions was a highly visible exception. But research equally documents numerous instances in which minorities, women, older workers, persons with disabilities, and other out groups continue to experience substantial differences in hiring compared to their equally qualified white, male, prime age, non-disabled counterparts.

My written testimony cites multiple studies illustrating this point, of which I'll just mention one, because it's so particularly startling. When transgender individuals who are men transformed into women, their earnings fell 12 percent, while women who transformed into men had their earnings rise eight (8) percent.

Such findings are consistent with the experiences reported by workers themselves. In a typical survey, in fact, one sponsored by this Commission; workers reported that they had experienced workplace discrimination within the previous year at the rate of 31 percent for Asians, 26 percent for African-Americans, 18 percent for Hispanics, and 22 percent for women.

The most vivid kind of research that establishes the direct link between those sorts of employment outcomes and disparate treatment in hiring has already been mentioned by Commissioner Ishimaru this morning, that is employment testing. These are studies in which pairs of research assistants portraying equally qualified job applicants are sent to apply for the same jobs. The research assistants in each pair differ in one visible characteristic, one visible characteristic such as race or gender, but their qualifications have been designed by economists like me to be exactly matched and equally qualified for the jobs. Consequence is that when the carefully matched applicants experienced markedly different treatment by employers, that difference is directly attributable to their race, gender, or whatever dimension is being tested. Typically, our testing studies report discriminatory treatment of women and minority job applicants by between 20 and 25 percent of employers.

Testing studies have been conducted since the 1990s, and they continue to be conducted today, and the results leave no doubt that disparate treatment in hiring has not been eliminated. For instance, last year I was involved in a study of upscale restaurants in New York City which reported that in hiring people for well paid server positions, 31 percent of upscale restaurants in New York City treated job applicants of color significantly worse than equally qualified whites.

My written testimony describes additional research using methods other than testing that also document hiring problems. Perhaps the most dramatic in that category showed that only when symphony orchestras audition musicians behind screens where judges could not see the gender of applicants, did women musicians succeed in getting hired.

To be clear, disparate treatment in hiring is not typical of the majority of hiring decisions today. Happily, research documents that discrimination is now more the exception than the rule. Research also indicates that the problems that remain are particularly concentrated in a subset of industries and employers. These industries and employers represent holdouts against the nation's general law-abiding progress.

A number of studies highlight specific industries where, in contrast to the majority of industries, disparate treatment remains blatantly prevalent. My written testimony focuses on two examples.

The first one analyzes African-Americans seeking professional and managerial positions in the advertising industry. There, African-Americans are employed at only 55 percent of their expected number. They are predominantly segregated to work on so-called black products such as basketball shoes and malt liquor, and they earn on average 25 percent less than equally qualified whites. Overall, the black-white gaps in the advertising industry average 38 percent larger in that industry than in the average industry. And the difference in racial gaps between that industry and the rest of the labor market is more than twice as large today as it was 30 years ago.

A second industry study to which I'd like to draw your attention involves women in construction. Here, research has demonstrated that conscious discriminatory behavior practiced by or tolerated by construction employers accounts for an under- representation of about 220,000 women in well paid construction jobs. And women commonly face harassing, hostile, and unhelpful behavior, deterring them from applying for work and driving out those who have been hired.

Other studies have pinpointed additional industries where disparate treatment in hiring is concentrated, including employment agencies, financial services, television and film production, and high-tech. With respect to employment agencies in particular, I would like to note testing results which showed that while I reported a minute ago that the typical employers in the American economy, about 20 to 25 percent of them, are found by testing studies to discriminate in hiring, for employment agencies, when they have been tested, that rate of discrimination rises to about 67 percent.

Rather than focusing on a long list of specific industries where there are problems, let me briefly focus on a second circumstance where research has identified concentrated disparate treatment in hiring. This concentration involves laggard firms within industries where the majority of firms have made considerable progress.

A decade ago, my colleagues and I developed new statistical techniques for identifying these firms using the Commission's own EEO-1 data. With these techniques, we concluded that fewer than 20 percent of employers are what we call "hard-core" discriminators, meaning firms where the current utilization of women or minorities is substantially below that of peer firms in the same industry and where utilization of women -- underutilization of women and minorities has persisted compared to that of peer firms, other firms in the industry over many years. I'd note, by the way, that order of magnitude of about 20 percent is quite consistent with the testing findings and also the survey findings from employees.

When I say the disparate treatment in hiring is concentrated in these laggard firms, I mean two things, first, that investigations of hard-core discriminators are much more likely to find significant problems than investigations of the average employer, even the average employer against whom an EEOC charge has been filed.

Second, I mean that the number of women and minorities adversely affected by these problems is substantially larger than for, again, randomly selected charged employers. For example, when the then-Chair of this Commission asked my colleagues and me to identify several dozen illustrative hard-core discriminators for the Commission to consider, the firms we reported averaged 500 adversely affected employers per firm.

In closing, I'd like to quickly suggest three implications for EEOC enforcement of this research. The most fundamental, of course, is the need for continued and enhanced enforcement addressing disparate treatment in hiring. Research suggests that among the charges filed with the Commission each year, a number will be likely to be well founded. And, for reasons discussed by other people this morning, the number, the six percent rate of charges filed is likely substantially under-represent the total prevalence of discriminatory treatment in hiring.

The second implication is the desirability of concentrating enforcement resources to match the concentration of problems. This could be done, for example, by analyzing 100 percent of the charges coming to the Commission using EEO-1 data using the techniques I've briefly described. Enforcement priority might then be accorded to charges that coincide with statistical indications that the accused firm is a hard-core discriminator.

The second way this principle might be applied would be guided by research, identifying industries where problems of disparate treatment appear to be concentrated. And then enforcement mechanisms such as Commissioner's charges and directed investigations could be targeted toward those pockets of concentrated problems. Thank you.

CHAIR BERRIEN: Thank you, and we'll turn now to Ms. Vann.

MS. VANN: Thank you very much Chair Berrien, Commissioners, General Counsel Lopez, Ms. Miaskoff and colleagues. I want to thank you on behalf of the EEAC for inviting us to participate in today's meeting and to share some of the best practices that we have identified over the years for avoiding discriminatory recruitment and hiring practices through the development and implementation of truly effective EEO training and professional development programs.

By way of background, as many of you already know, EEAC is a non-profit association of large corporate employers whose primary aim is to develop and implement sound approaches to the elimination of workplace discrimination. EEAC was established 35 years ago, primarily with three aims in mind: (1) to file amicus briefs in cases involving significant employment law issues, of particular importance to the employment community that we represent; (2) to provide compliance assistance to our member companies, the vast majority of which, by the way, are federal government contractors subject to the affirmative action requirements that are enforced by OFCCP; and, (3) to serve as a clearinghouse for our membership on federal EEO and AA compliance enforcement trends and best practices.

As part of our mission, EEAC has been providing EEO compliance training to its members for over 30 years, holding, you might be interested in knowing, its first formal seminar on determining availability for affirmative action plans way back in 1977. So we've been in the business of training HR professionals for quite some time and are very pleased, again, to have an opportunity to share some of the best practices that we've collected over the years.

Literally thousands of corporate human resources and compliance professionals have gone through EEAC training. Our core training curriculum currently features five programs that are offered at various times each year to a national audience. We have the Basic EEO and Affirmative Action Compliance Program. We have a program entitled Developing and Defending Compliant Affirmative Action Programs, Responding to Charges of Employment Discrimination, Conducting a Compensation Analysis, and our most recent course offering, the EEO-AA Compliance Immersion Program.

Again, by way of background, the three-day basic survey course addresses essentially the fundamentals of equal employment opportunity and affirmative action. The others are more technical deep-dive programs focused on, for instance, preparation of affirmative action plans and programs and managing OFCCP compliance evaluations.

Again, we offer a program specifically designed to teach HR professionals how to respond effectively to discrimination charges and how to conduct internal investigations to ensure that the information that's being gathered is meaningful both to the company, as well as to the EEOC and the enforcement agencies to whom they are providing the information.

We also, as I mentioned, offer a five-day immersion program that combines all the essentials of the basic developing and responding courses into one offering for HR professionals who need an immediate and very in-depth education into EEO and AA compliance obligations.

One program that we have been offering for about ten years now that's particularly appropriate to discuss at today's meeting is the EEO Essentials Program for recruiters. This program provides recruiters with an understanding of the critical information that they need to function effectively in today's business environment, emphasizing the importance of consistent, non-discriminatory application of selection criteria and fair and equitable treatment, obviously, of applicants for employment.

As a complement to EEAC's training curriculum, we also offer a wide array of written -- wide array of written publications and resources that further assist our members to understand what their ongoing obligations are, not only with respect to complying with the letter and the spirit of the law but also in developing and ensuring that they pursue best practices in these regards.

I've been asked today to address three questions, the first of which is the business case for proactive prevention of hiring discrimination through comprehensive EEO training, two, any hurdles that might impede those efforts, and then, finally, again, best practices for ensuring full and meaningful compliance.

As I've discussed, EEAC has played and continues to play a significant role in providing in-depth technical training to our nation's HR professionals. And as someone who's been involved over the last 15 years or so in various aspects of EEO training and discrimination complaint investigation methodology and things like that, I am pleased to share some of the best practices that I've observed and which have been shared with me that have been effective in preventing intentional discrimination, particularly in the hiring and selection process.

First, I'll begin with the importance of proactive prevention. You've heard throughout the course of today many folks talk about how important it is to ensure that HR professionals and employees have a meaningful understanding of what not only the law requires of them but also what the company rules are with respect to EEO and AA compliance.

For a lot of folks, and Commissioner Feldblum you talked about personal responsibility, if you will, the message is driven home most effectively when companies point out that unlike Title VII, for instance, we have this law called ABC Company rules, policies, and procedures under which you may very well be subjected to disciplinary action up to and including termination. And that is a point that resonates with folks. People understand that, "Okay, I might not be dragged into court, federal court. I may not be dragged into federal court, but I could very well lose my job as a result of failing to comply with these laws." So, to that point, creating a corporate culture that places a premium on fair and respectful treatment across the board makes everyone happier -- let's admit that -- and also contributes to a more productive workplace.

Establishing strong EEO and non-discrimination policies and effectively communicating compliance expectations through training and other professional development opportunities also obviously helps to reduce the risk of litigation that no one wants to be involved in.

One of the potential hurdles in this area is the fact that comprehensive, and I think someone brought it up earlier, comprehensive company-wide training and development can itself be quite expensive and time-consuming, which may limit the range of options available to some companies, particularly smaller employers. Therefore, the availability of low- to no-cost quality EEO training packages may be very important to smaller employers in particular that do not employ in-house professional development staff or who cannot afford to send personnel outside to programs like the ones that we offer.

With that said, let me turn to some of the best practices that I'd like to highlight for maximizing success of these corporate EEO training programs. First and foremost, it's very important to make sure that everyone is trained, recruiters in particular, and that they're trained often, regularly. Ideally, all employers should have some form of mechanism in addition to written policies, obviously, contained in personnel manuals for educating employees about their EEO and non-discrimination compliance responsibilities.

What type of training offered may very well vary depending on the audience. Annual awareness training kind of survey programs which, regardless of their brevity, ought to clearly describe the company's EEO and non-discrimination, including retaliation and harassment zero tolerance, policies, its complaint filing and investigation procedures that provide examples of prohibited conduct and outline the consequences, as I indicated before, for violations, may be quite sufficient for some populations of the workforce. For others, and perhaps most, more substantive EEO training is required.

Recruiters, and we've talked throughout the day about the importance of ensuring that recruiters understand what their legal obligations are. Recruiters and others on the front line need to be especially proficient in EEO laws and principles in order to understand how hiring discrimination can occur. For instance, in the EEO recruiters program that I talked about, that EEAC has developed, that program's geared specifically towards EEO recruiters and front line managers and focuses on, rather than legal theory; focuses on specific examples and types of conduct that can get them into trouble. And we include examples, as well. It's very important, we have found, to provide practical examples, course work, training exercises as part of these programs to reinforce the law, the policy behind why it is that we do what we do.

Just very quickly, I see that I'm out of time. We do have a few recommendations for the Commission's consideration that I'd like to review.

Because of the importance of EEO training to minimizing the risk of intentional discrimination in hiring decisions, it would be beneficial especially to small, as I mentioned earlier, and mid-sized employers for the Commission to update its 1998 Best Practices of Private Sector Employers Report to focus specifically on best practices for delivering effective EEO training and professional development.

Providing a range of best-in-class examples from the private sector will enable many more organizations to adopt effective EEO training programs that clearly convey the law, as well as company policy and expectations, while providing practical guidance for addressing real-world issues. At the same time, however, the Commission should be mindful of the fact that not all companies, as we discussed, are in a position to be able to provide identical training opportunities.

Indeed, companies should be discouraged from taking a one-size-fits-all approach in implementing EEO training, as my sister, Ms. Speights, mentioned earlier. Therefore, the Commissioners should avoid dictating to employers what specific type of program or training curriculum will be required, as learning needs, resources, and circumstances will vary from company to company. Thank you very much.

CHAIR BERRIEN: Thank you, and, again, we do have access to and, I believe, probably all reviewed already the full statements, but they will be available for everyone on our website, so thank you both. I'll turn now to Commissioner Ishimaru for questions, comments.

COMMISSIONER ISHIMARU: Great. Thank you Madam Chair. Let me say for the record that I believe that damages are an important piece of our arsenal, and I think that we need to use that, as well, with other forms of relief to the fullest extent in appropriate circumstances. I think that if you look at the monetary relief that we get in our cases, especially the big cases, the relief per individual involved quite often is very modest. And if it adds up to an aggregate that's large, it extends the -- it reflects the extent of the problem. And sometimes the numbers get large, but if you look at what people get, quite often the recovery for real damage that's been caused to them is very small.

Dr. Bendick, thank you. Thank you to both of you for coming. You both have been friends of the Commission for a long time, and Dr. Bendick, thank you for your suggestions, your thoughtful suggestions on looking at the data that we collect, and we sit on a gold mine of data here, and how to best use that. I hope we will do a better job of analyzing our internal data that we collect that we have employers provide us. I know there is a burden of doing that, and I think if we collect it, we should be using it, analyzing it accordingly, and it's also a valuable vehicle for employers to do their own self-examination. And I guess, Ms. Vann, one of my concerns, I think the training that you and other organizations offer is very valuable, and I think having the framework out there of how to do it and make sure that it's tailored for appropriate employers is also important.

I guess the thing that concerns me goes back to General Counsel Lopez's clip, not the one that he showed about Walmart but the one that he talked about on the ABC News program where you had in this coffee shop in, I believe, New York City you had three unaffiliated HR professionals going up to the actor and basically saying, "Here's how you get around this." And even though no doubt they were trained, you know, I would assume that they were given high level and good training, yet they were catering to the stated desire of the person, you know, of how do you get around this.

And, you know, one thing that I mentioned earlier, Dr. Bendick mentioned, as well, is testing, and whether you do testing from someone coming in or whether you do it as an internal control matter is something that I don't know whether your members use as a evaluation device to see whether the lessons that are taught through the training are getting through. How do you -- how do your members actively monitor to make sure that the lessons that they're providing at substantial cost are actually getting through?

MS. VANN: I'll see if I can remember, because my head exploded a little bit when we heard the description of what happened, but you're absolutely correct. Self-auditing, regular self-auditing is vitally important, particularly in large organizations where there are a number of players, and our member companies are actively involved in monitoring regularly their workforces for these types of problems. But because these things can become quite unwieldy, it's really, really important for supervisors to understand their responsibility to be paying attention, to be active participants in the workplace, watching for cues, watching for potential issues which if left unresolved, could result in problems, potentially on a systemic basis.

COMMISSIONER ISHIMARU: So when you talk about auditing, you're talking about something similar to testing where they are making sure that their people are not steering people or turning them away based on unlawful purposes. They're doing this as a business matter of course and making corrective actions if they see a problem, it isn't just monitoring by checking off the box? --

MS. VANN: That's right.

COMMISSIONER ISHIMARU: -- saying we gave the training, and this is happening by your members, as well as others in the community?

MS. VANN: Yes, certainly among the vast majority of our member companies, and it may very well be because, as I indicated before, the vast majority of our members are federal government contractors who by virtue of their obligations under the Executive Order, are required to conduct reviews of their policies, practices, and procedures to ensure that the mechanisms that they put into place to ensure equal employment opportunity are, in fact, working. I haven't, prior to your suggestion, thought of it in the context of matched pair testing, but I suppose it's very similar to that.

COMMISSIONER ISHIMARU: Yes, yes, okay, great. My time is up. I thank again, the panel. It's great to have both of you back before us. Thank you. Thank you Madam Chair.

CHAIR BERRIEN: Thank you Commissioner. Commissioner Barker?

COMMISSIONER BARKER: And I want to thank you both, too, very interesting. The statistics, very interesting. You gave us lots of information that you, unfortunately, did not have time to go through. It bears spending more time with, so thank you.

And, Rae, always great to have you here. And I particularly appreciated your best practices suggestions, and those are things that we need to spend time with. I really don't have any questions. You were both great.  Thank you.

DR. BENDICK: Could I -- could I make a quick comment that follows up, relates to this best practices issue as to what Commissioner Ishimaru was just asking about? Through a non-profit organization I was hired by a major employer, a major medical center, to do testing of their recruiters. The major medical center had very strong policies saying, "We don't want to discriminate," and they had gone an extra excellent step. They had required all their hiring supervisors to take training on best practices in interviewing and hiring, particularly focusing on behavioral interviewing, getting the interviews to focus on real job requirements. But the senior executives in the human resources function were very concerned that maybe the training wasn't being carried out in practice. So they hired us to come in and do testing of their hiring process, and, sure enough, a number of supervisors were applying the techniques, the best practices that they've been taught, and a number were not. To the best of my knowledge, this is a rare instance of using testing to monitor what's going on. Companies all the time invest millions of dollars in people like secret shoppers to go out to see how well their sales clerks are doing in relating to the public, how effective they're being in carrying out the best practices in sales training they've been equipped with, but not a lot of employers have taken that comparable step with their all-important human resources.

CHAIR BERRIEN: Thank you and now we'll turn to Commissioner Feldblum.

COMMISSIONER FELDBLUM: Thank you. Well, I actually had an idea just sitting here about a possible project between the two of you. Now, this is usually where my staff starts shivering when I say, "I just had an idea," but it is interesting based on what you just said, which is -- just the background for it. You know, HR folks are used to saying universal application of selection criteria, teaching that, and so one thing we have to get them to understand is there's also an individualized assessment piece through ADA. But that I actually think is easier than the second piece, which is, yes, it's universal application of selection criteria, but how do you deal with the unconscious bias? You know, you are talking to the two of them, and just one of them you're just relating to and you connect with, and you just, "Oh, that interview went so well," without any sense of why that interview went so well because of what you, the recruiter, was bringing to it. So I think that's great if other companies want to do that, medical, you know, what they did, but here's another possible project that at your trainings you actually work with Dr. Bendick to create essentially a role play, okay. So you've got the -- and then you've got as if it was two people and you have the person. And then you deconstruct what happened and why did that happen, and then you let people do it, and you video tape them. Again, this comes from clinical teaching where I'm telling you it's amazing the things you discover about yourself when you watch yourself on video. Now, that's costly, but it's not as costly as potentially a lawsuit and lots of other things. So I just thought I'd throw that out, would be curious about either reactions and, you know --

MS. VANN: Great idea. I'll be calling you. And one of the reasons why I say it's a great idea, at least in theory, is because those are the types of exercises that stay with people. They remember it. They see themselves, as you said, perhaps in a different light, a light that maybe surprises them. So your suggestion is well taken.

COMMISSIONER FELDBLUM: The other thing that I think that can be helpful in that is it doesn't assume that they're bad people.

MS. VANN: Right.

COMMISSIONER FELDBLUM: See, it is worth getting that clip and showing that of the What Would You Do? because there the guy was saying, "I don't want to hire a deaf person." So the three HR people were coming up and saying, "Don't say that. They will totally sue your ass off." I mean, that's what they -- you know, "Here's what you do. Just take the application, and then don't call. That's how you do it." But, see, that's not the main situation. People don't usually say to deaf people, "Oh, I don't want you, because you're deaf."

MS. VANN: Right.

COMMISSIONER FELDBLUM: They take the application, and then they don't call, okay, or they think they're doing -- so what's the good thing about this is it takes people from where they're at, which is often that they don't think that they're prejudiced. They just didn't have as good an interview with the person whose English wasn't as good. I mean, whatever, so…

DR. BENDICK: There is considerable research that definitely confirms that the majority of the problems we're dealing with today are unconscious rather than conscious, and it's important that the training both provided to employers and provided to Commission staff reflects that state-of-the-art conceptual understanding of what discrimination is like today. It's often called modern racism, modern sexism, and it really is different from what was prevalent when the laws were written back in 1965.

I've testified before this Commission before mentioning that the Systemic Enforcement Manual, which the Commission is going by, actually is quite light and, I would say, insufficient on these conceptual issues, the current state-of-the-art thinking based on research about how discrimination happens today. And it would be, I think, a major step forward both for the Commission's activities and eventually for employers' activities to bring in more expertise and strengthen that conceptual foundation. It's very good that the exercises are practical. That's essential in training, but it's also important that the practice be linked up to concepts so that people don't go back to their HR departments just thinking mechanics.

COMMISSIONER FELDBLUM: Thank you so much, to both of you.

CHAIR BERRIEN: Thank you Commissioner, and Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you Madam Chair, and thank you to both of our witnesses for being here today. Dr. Bendick, when I looked at your testimony, at first I thought you were talking about in the hard-core discriminators, and maybe we should come up with a more G-rated term for that, that we -- At first I thought you were focused on industries, and then I -- but then these were actually very specific firms that you were focused on and comparing them to others in their industry, right. So, I guess my -- part -- one of my questions is, what makes them an outlier? What is it about them that, you know, that they -- why were they the outliers in terms of discriminatory practices?

DR. BENDICK: They're visible outliers in the data. In fact, when we present the data graphically, what we talk about these firms as sore thumbs, because when you look at a typical bell curve of employers in their industry, there's the bell curve, and they're way out here like a sore thumb. They're so visibly different from other employers. What underlies that practice --

COMMISSIONER LIPNIC: That's what I'm getting. That's what I'm getting at.

DR. BENDICK: -- is either conscious or unconscious practices and sometimes a mix, but in the previous panel people talked about -- in a number of the previous panels people have talked about employers who said they didn't think they did anything wrong. That often is the case with these hard-core discriminators. They are – they've been resistant to receiving information about what are standard practices or best practices in their industry. They think they're doing just fine. They don't -- and, in fact, they are outraged when the Commission or other litigators go after them, because they don't think what they're doing is wrong. And, unfortunately, by the end of litigation, we also see a number of these employers saying, "Well, we just were hit for $20 million, but we still don't think we've done anything wrong," which makes them extremely resistant to implementing in a good faith sense the injunctive relief to which they've been subject.

COMMISSIONER LIPNIC: And, actually, Ms. Vann do you have -- I'm curious in terms of your members and for those who may potentially -- of course, none of your members are, you know, in any way hard-core discriminators, but --

MS. VANN: They aren't.


MS. VANN: We've been known to reject some.


COMMISSIONER LIPNIC: So, actually, I guess I'm curious. Do you guys do just for your membership some kind of an assessment in terms of practices within industries or how to, you know, sort of better themselves along those lines and sort of picking up where Dr. Bendick left off?

MS. VANN: Not regularly. In the past, we have surveyed our members on charge activity, litigation activity, trying to create some meaningful data that they can use to benchmark and develop best practices, but not something that we've done on a regular basis because, as I'm sure you'll understand; a lot of companies are overwhelmed and are not really interested in responding to another survey, especially about potentially damaging information that they don't want disclosed, but we have done it.

COMMISSIONER LIPNIC: And the other question I had, Dr. Bendick, in terms of sort of using testers, and in your experience with companies, in those situations do you -- are the employees in the company made aware that there may or may not be someone who is a tester at some point? And how does that, you know, how does that sort of affect the result one way or the other?

And similar to what Rae had said earlier about, "Gee, if it's in the company manual that you may be disciplined for whatever behavior, that that probably has much more of an impact than the poster that sort of just generally tells people about their rights under discrimination law. I'm curious.

DR. BENDICK: Generally, methodologically it's important that they're not aware that they're subject to tests.

COMMISSIONER LIPNIC: Well, that's why I was wondering. Would it have more of an impact if they, you know, if they were aware?

DR. BENDICK: Well, after you've completed the testing program, of course, you'd want to make them aware. You would be calling individual employees in for counseling and coaching and improving their performance, but it's also helpful to let the rest of the population know; but while the testing is going on, you absolutely don't want them to know that they're being tested. We're very clever about sliding people in that look like very credible applicants.

COMMISSIONER LIPNIC: Okay. Thank you again both for being here. Thank you Madam Chair.

CHAIR BERRIEN: Thank you to this panel. I just have a couple of questions. Dr. Bendick, one of the reports that you cited in your written statement was a statewide Georgia analysis focused on a particular state. I wondered if that practice of looking at specific regions or geographic areas is something that is widely represented in the literature. Is it an approach that you would recommend in addition to, perhaps, industry-focused examination of literature, given that we do have nationwide reach?

DR. BENDICK: Back when the civil rights laws were originally passed in the 1960s, I think there was a lot of thinking that discrimination was very much a regional or a locational issue. All the testing research we've done and a whole lot of other research, non-testing research, suggests that region is probably not your best way to target pockets of problems these days.

Industries, sore thumb firms within specific industries, employers in particular kinds of circumstances seem to be a better way to target your enforcement than looking at regions. We just happened to do the state of Georgia, because it was a nice, compact labor market to look at, and there were some state legislative issues at that time that we wanted to influence with the findings.

CHAIR BERRIEN: And could you just share how exactly did you use the EEO-1 data within that study? And so whether it was to focus on an industry or to focus on the kinds of firms you've identified, if we wanted to replicate that in our look at EEO-1 data as part of our enforcement effort, how would we do it?

DR. BENDICK: The methodology involves taking firms within the same industry, hiring the same kinds of workers in the same labor -- same local labor market in the same time period. So you're getting an apples-to-apples comparison, so you're comparing, for example, the -- not a randomly selected example, perhaps -- who's being hired at Walmart compared to who's being hired at or who is being employed at Target across the street from the Walmart. The presumption is, if you're talking about employers -- employees of the same kind like sales or managers in comparable companies of comparable size in the same industry in the same local labor market; if Target, for example, and these are real facts, can achieve 55 percent of women as managers in their retail stores; then it's surprising that Walmart only gets 33 percent of their managers in retail stores. That's the kind of benchmarking that you can do very easily using this EEO-1 data. We have all the methodology and all the software worked out and have offered it to the Commission. We did this previous study where the Commissioner of this Commission asked us to identify basically the couple dozen worst discriminators in the country, and we gave a list. So it's all available, for free, off the shelf for the Commission to use.

CHAIR BERRIEN: Okay. Ms. Vann, EEAC has a broad reach to larger companies, but I think one of the things that came up in the earlier conversation was whether there might be some specific needs in terms of training and outreach of smaller companies, smaller businesses, and perhaps also newer businesses and/or businesses with ownership that may be less oriented towards U.S. laws and practice.

Could you speak a little bit about, if not EEAC, what resources might be available or what the Commission may need to do to reach those pockets of the employer community in addition to some of the companies that are tied into your network?

MS. VANN: There are a number of offerings readily available at low or no cost, readily available over the web and that sort of thing. The difficulty is in identifying quality programs, and that's a challenge, and that might be an area that the EEOC can help with.

Even for our members we find that cost can be a big issue for them, so they've encouraged us to move more to web-based programs, shorter sessions, things like that. I can very much see the EEOC developing some type of web-based training program that would be made available to smaller employers that would fill that gap. Again, the key is not volume but quality.

CHAIR BERRIEN: And, just for the record, we do have some offerings by webinar, and we'll certainly note whether and how to expand those in the future and consider that. I want to thank both members of this panel and again to all of our witnesses today, but particularly thank you for the light you've shed on best practices and what we ought to know about the employer communities concerned.

Ms. Vann and Dr. Bendick, for providing a very useful overview of research on this issue, I want to thank you. We will have very brief closing statements for any member of the Commission that may choose to make them and beginning with Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Madam Chair, I just wanted to thank you for calling this meeting. I think it was useful. I hope we'll explore a number of these issues that came up today in greater depth in various fora, because I thought there was a lot there that we just didn't have time to cover, so I look forward to our future meetings.

CHAIR BERRIEN: Commissioner Barker?

COMMISSIONER BARKER: I agree. I think it's been a real helpful meeting, and one of the things that I've come away from the meeting with is the realization that this is an area of concern for the EEOC. And what we need to learn from it is that we need to really take a good look at our own training along this line and how effective we are at telling, you know, both sides, employers and employees, what their rights and obligations are in the whole realm of hiring and look at more effective and more up-to-date training. And you know like we've heard from several people, you know, get away from the seminar model. Go more to the web model. I think that's what we need to look at.

CHAIR BERRIEN: Thank you. Commissioner Feldblum?

COMMISSIONER FELDBLUM: Yes, thank you very much Madam Chair for pulling together this meeting and, again, General Counsel Lopez. I'd just like to make a brief pitch right here for a webinar that I hope gets out widely. If you go onto the EEOC homepage right now and click on the training, you can for a mere $129, download a webinar, a one-hour webinar with me about ADA regulations and coverage, okay. Now hopefully there will soon be a place that says, "Where did you hear about this?" and if it says that, I want you to say that you heard it through this meeting. Okay.

Now, separate from that, I do hope that we start developing these webinars that are for free for businesses, that are below a certain amount, that we have specific webinars that are specifically for, as Ms. Lopez-Rodriguez said, that employees understand what the law is, so if they get pressured by a manager they know. And I do hope that in all of this we'll be able to have a place that says, "Where did you hear about this?" so whoever from the EEOC is the most active in getting that out, they're going to get this huge prize like a chocolate bar. But, anyway, thank you very much, and I look forward to more training and education.

CHAIR BERRIEN: Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you Madam Chair. Again, thanks to all of our witnesses. I'll second the comments of all of my colleagues, and I think -- and Madam Chair, thank you to you and your staff for pulling the meeting together. And I think the thing that is most sort of follow-up point for me and interesting to me is, because I think it's such an important process or plays such a heavy role in the hiring process, is the use of hiring agencies, temp agencies. And I think that to the extent we can have follow-up on that and really look at the types of differences in that industry for hiring purposes, I think we can go a long way to educating even more employers and joint employers about their obligations under the law. Thank you.

CHAIR BERRIEN: Thank you, and we have to again note that in light of the redeye that you took in from the West Coast, this was especially admirable service. General Counsel Lopez, I don't know if you'd like to say anything else before we -- before I close out.

GENERAL COUNSEL LOPEZ: Sure. Thank you Madam Chair, thank you Commissioners for pulling this meeting together. Thank you to all of the witnesses. I think it's been very interesting. I do want to leave it on a glass half full note. There's been a lot of discussion about the video of, What Would You Do? and about the three human resources individuals, but there were other customers on camera in that restaurant. Several of them are very, very visibly annoyed as to what happened, and one actually got up and went and confronted the discriminator in a very aggressive, passionate way, reminding him that what he was doing is wrong, and walked out and says, "I hope they sue your ass."

And to me, it was a -- to me, it was -- you know, to me it was a reminder as to how far both we've come but also how far we have to go, but it was nice to see that several people understood the importance of economic independence for individuals with disabilities and understood the sheer wrongness of discrimination.

CHAIR BERRIEN: Thank you. I think in addition to a gavel I may need to get a beep for future meetings or we're going to have to delay broadcast or something. I want to -- I want to again thank you, General Counsel, and to the regional -- to the attorneys who were here and the charging parties who were here who shed so much light on and provided such context, rich context for what a hiring discrimination case is all about, what the law that requires equal treatment in the hiring process really means. To return to something that Commissioner Feldblum said today and has said on other occasions, work is really an essential part of life for many, many people and an important part of identity, and our work is fundamentally about making sure that opportunities to work are not withheld or denied based on a prohibited characteristic.

In this economy, there are many people seeking employment, and there are many people who will be turned away. Ultimately, our mission is to ensure that whatever the economic climate that the reason they are turned away is not an illegal one.

We heard some very compelling and specific information today about instances where, unfortunately, that has not been true; but we've also received some very useful guidance about things that might be done in the way of training, in the way of outreach, in the way of education that might prevent future occurrences.

And we've heard about the importance of consent decrees and other provisions that the Commission has been able to obtain through litigation, through the conciliation process that are making a difference in practices in specific employers or with specific employers and specific workplaces. And whatever we can do to spread that message even more widely, I think it's incumbent upon us to do, because that is also a critical part of ensuring equal employment opportunity in the 21st Century.

I want to thank all of the panel and speakers today and the General Counsel and his staff for the very thoughtful work and preparation that occurred for today's meeting and thank you to my fellow Commissioners again for your attention and your contributions. And, with that, is there a motion?

COMMISSIONER FELDBLUM: I'll move to adjourn.

CHAIR BERRIEN: Thank you. Second?


CHAIR BERRIEN: We're adjourned.

(Whereupon, the foregoing matter was adjourned at 1:19 p.m.)