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Meeting of July 1, 2015 - EEOC at 50: Progress and Continuing Challenges in Eradicating Employment Discrimination - Transcript


Jenny R. Yang
Constance S. Barker
Chai R. Feldblum
Victoria A. Lipnic
Charlotte A. Burrows
Bernadette B. Wilson
Ron Edwards
Donald Tomaskovic-Devey
Jocelyn Frye
Rachel D. Godsil
Solon Barocas
Darrell S. Gay
Cari Dominguez
James Lee
Peggy Mastroianni


CHAIR YANG: Good morning. The meeting will now come to order.

Thank you all for being here. In accordance with the Sunshine Act today, our meeting is open to public observation of the Commission's deliberations and voting. At this time, I am going to ask Bernadette Wilson to announce any notation votes that have taken place since the last Commission meeting.

MS. Wilson?

MS. WILSON: Good morning. And before I begin, is there anyone in need of sign language interpreter services? (Brief pause.)

MS. WILSON: Okay, thank you. Good morning again, Madam Chair, Commissioners, General Counsel, Legal Counsel, I'm Bernadette Wilson from the Executive Secretariat.

We'd like to remind our audience that questions and comments from the audience are not permitted during the meeting, and we ask that you carry on any conversations, outside the meeting room, departing and reentering as quietly as possible.

Also, please take this opportunity to turn your cell phones off, or to vibrate mode.

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

During the period June 13th, 2015, through June 26th, 2015, the Commission acted on nine (9) items by notation vote:

Approved litigation on two (2) cases;

Approved Amicus Participation in two (2) cases;

Approved three (3) Subpoena Determinations;

Approved updated enforcement guidance on pregnancy discrimination and related issues; and,

Approved a resolution honoring Veronica Giles on her retirement.

Madam Chair?

CHAIR YANG: Thank you.

Welcome, and thank you all for joining us for a very special Commission meeting.

Tomorrow marks 50 years to the day that the Equal Employment Opportunity Commission opened our doors. Today's Commission meeting provides us an opportunity to not only reflect on our progress toward a more just and equal workplace; but also to understand how we, as a nation, can best address both the persistent and evolving forms of discrimination that we see in the workplace today.

Congress created the EEOC to give life to Title VII of the Civil Rights Act of 1964, prohibiting employment discrimination based on race, color, religion, sex and national origin.

Since its creation, EEOC has played a vital role in fulfilling the promise of Title VII, as well as the Age Discrimination in Employment Act, the Equal Pay Act, the Americans with Disabilities Act, and the Genetic Non.Discrimination Information Act.

Throughout the month of July, across our offices, the EEOC will host a nationwide open house with programs to celebrate our history, and throughout the year, we will have a year-long commemoration of our 50th anniversary, highlighting the rich story of the Agency and our continuing work to advance equal employment opportunity.

Over the years, our nation has made undeniable progress towards equal employment opportunity. Never before in our nation's history has the American workplace been more inclusive than it is today.

To commemorate our 50th anniversary, today, EEOC is releasing a report, American Experiences Versus American Expectations, summarizing data on the composition of our workforce by race, gender and ethnicity across occupational job categories from the year we first began collecting this data in 1996 .. 1966, excuse me .. to our latest available data from 2013.

I would like to acknowledge and thank Ron Edwards, Director of our Program Research and Surveys Division of our Office of Research Information and Planning, who has been leading this research and will present some of the findings today.

The report offers some important data points. For example, the participation rate for women professionals has skyrocketed from roughly 14 percent in 1966, to over 53 percent in 2013. Nearly 50 years ago, African Americans, Hispanics and Asian Americans, each made up less than 1 percent of the senior level positions in large companies.

Since then, the participation rates for all three groups have increased by 5 to 7 times. That is real progress and worthy of celebration. Yet we know that across the country, we still face significant challenges to equal employment opportunity in the workplace, some of which we will examine in our meeting today.

This is an extraordinary time in our nation's history. Recent events have given us both heartbreak and hope. We mourn the tragic loss of nine people, at Mother Emanuel AME Church in Charleston, South Carolina, just two weeks ago. Yet, after that tragedy, we also bear witness to the power of our nation to come together.

Over the past year, we have grappled with events in Baltimore, Ferguson, Staten Island and communities across the country that shine a light on the inequality that remains. Yet, the Supreme Court's decision on Friday, recognizing same sex couples' right to marry; only reinforces and inspires hope that no matter who you are, or who you love; we are all promised equality under the law.

The hope and promise of equality has been at the heart of EEOC's work for the past 50 years. Today, our country is experiencing both changing workplaces and new demographics which will affect EEOC's work in the next 50 years.

As an Agency, we must evolve to address the equal employment opportunity challenges of tomorrow. Despite the progress we have made, we still see blatant discrimination, particularly in the area of harassment and retaliation.

At the same time, one of the great challenges facing the EEOC, moving forward, is the way that discrimination has evolved from overt, to more subtle forms. Yet, they are equally harmful. To achieve equality of opportunity, we must ensure that all workers are judged based on their abilities, rather than assumptions or stereotypes based on age, gender, ethnicity, race, national origin, religion, disability or other immaterial factors. We must eliminate artificial and unnecessary requirements that serve as discriminatory barriers to opportunity.

As a nation, these are important issues for us to address head.on so that people from all backgrounds have the opportunity to move up the economic ladder to support their families and provide hope and prosperity in their communities.

I'm particularly interested in hearing from our panelists about strategies for reducing the impact of bias in employment decisions; the effects of technology in shaping hiring and other personnel decisions; and employment practices that strengthen workplaces by removing unnecessary barriers to equality, and fully utilizing the talents of all those in our workforce.

Current complexities in discrimination and evolving workplace practices compel us to develop new approaches to ensure equality for all workers in the 21st century. We know that there is no single answer or magic bullet that will eradicate discrimination overnight; but the commitment of EEOC, working in partnership with employers, employees and academics, is to ensure continued and lasting progress over the next 50 years.

I'd like to, again, thank all of the panelists for their participation in today's meeting, and the time they've spent on their testimony. I would like to extend my thanks to Beverly Barnes, our new Director of the Office of Communications and Legislative Affairs, as well as Kimberly Smith-Brown and Brett Brenner of the Office of Communications and Legislative Affairs, and to Peach Soltis, Timothy Riera, and Cathy Ventrell-Monsees of my staff, and Travis Gasper and Nick Brown, our stellar law student interns, for helping in today's meeting.

I would now like to invite my fellow Commissioners to make any opening statements or comments, beginning with Commissioner Barker.

COMMISSIONER BARKER: Thank you, Chair Yang. I'll keep my comments very brief.

This is a very special occasion for us and I'm very much looking forward to the testimony from those who have the experience that we don't have that will help us get a look back on where we've come and progress we've made; progress we have not made, frankly, and where we need to go from here.

I'm especially happy to see Former Chair, Cari Dominguez here, and I appreciate your sharing your time and coming the distance to be with us. Thank you.

CHAIR YANG: Thank you, Commissioner Feldblum.

COMMISSIONER FELDBLUM: Thank you Chair Yang, to you and your staff for putting this meeting together; thank you as well for your incredible efforts overall on behalf of this Agency.

How wonderful it is to say, Happy 50th Birthday to the EEOC. Since 1965, when the EEOC first opened its doors; the hard working people of this Agency, courts across the country, and individual people standing up for what is right; have helped moved fairness and equality in our workplaces, closer to reality.

And how wonderful it is to say, Happy 25th Birthday to the ADA. Having a golden jubilee and a silver jubilee in the first year, is really quite a nice thing.

Of course there is more to do. How can there not be? Until we have eradicated all forms of prejudice and fear and stereotype; there will be more to do in ensuring full civil rights in our workplaces. But as a Lesbian who first started coming out in 1979, and as a person who has spent many years working for LGBT rights in this country; how can I not believe that real change can and will come to this country in all respects.

So thank you to all of you who are here, thank you to all of you who have helped us along in this great journey, and thank you today to our witnesses who are here before us, and I look forward to learning from you this morning. Thank you.

CHAIR YANG: Thank you, Commissioner Lipnic.

COMMISSIONER LIPNIC: Thank you Madam Chair. Good morning everyone, and welcome to our witnesses. We very much appreciate all the work that you have put into your testimony and taking the time to be with us today. And I also especially want to welcome and thank Chair Dominguez for being here, and for your many years of service to the Commission, and your many years of public service.

As I said at our meeting in Miami, back in April, I think it's a wonderful idea that we've been holding these meetings to continue our study in celebration of the civil rights movement, and the Civil Rights Act, and to recognize just how far we've come. And of course, as my colleagues have said, this week is especially appropriate to hold this meeting since we are officially celebrating 50 years of the EEOC.

But I think today, it's also great that we're spending some of our time looking forward to ask, what do we know about what our next 50 years may look like? I think it's safe to say, and this is a huge understatement, that in as much as the America of 2015 is not the America of 1964; the America of 2065 will not be the America of today.

I know also there is at least one representative of AARP in the room and I will say that once you're on the certain side of 50, things start looking .. the world looks a whole lot different than on the other side of it. And in that vein, there are three quick points that I would make to let you know what's guiding my thinking this morning.

First, and this is something that I often say, sadly; it is certainly the case that there is still plenty of old fashioned discrimination to go around. I don't say that lightly. I believe it's an unfortunate truth that will continue to drive the bulk of the Commission's work, no matter how much certain circumstances may change around us. And I think it's something that should serve to ground us as we look at the different issues today.

Second, I think we should be asking who will be the America, and who will be the American workforce of the future. It's certainly been a much publicized fact that sometime around the middle of this century, there will be no racial majority in the United States. We will be a majority minority nation.

So, as the face of America changes, and as the milleninals take over the workforce; our workforce and workplaces change right along with it. And what does that mean for equal employment opportunity?

Finally, we should be keeping a close eye on the future of work. If the prognosticators have it right; coming technological developments, or rather technological revolutions, may more than once during our lifetimes, change the world as we know it. And of course, these disruptive technologies will change and manifest the workplace reshaping how we work, where we work, who we work with, and so on.

Here at the Commission so far, we've heard that a lot of the issues related to technology and how they interplay with the statutes that we enforce are oftentimes one's .. the same issues we've seen before, perhaps dressed up a little differently, in a little different technology.

But in terms of what the future may hold, as we've seen more and more of a big data Silicon Valley driven world, as I said at our meeting in Miami; we haven't seen anything yet in terms of how our workforces will change.

So with that, thank you again to our witnesses for being here and I look forward to your discussion and your remarks today.

CHAIR YANG: Thank you. Commissioner Burrows.

COMMISSIONER BURROWS: Good morning. I join my colleagues in welcoming Chair Dominguez, our distinguished guests and witnesses to commemorate the Commission's 50th anniversary.

The EEOC's work in enforcing federal employment discrimination laws over the past half century has helped make America a stronger, fairer and better land. So it's fitting that this anniversary falls almost on the eve of the 4th of July holiday; because nothing could be more patriotic than this discussion of how to ensure that this country realizes its highest ideals of equal justice for all.

As the written testimony shows, we've made great strides toward that goal in the past 50 years, strides that were almost unimaginable in 1965. But much work remains to be done, and if we're going to finally end job discrimination; America still has unfinished business in the area of civil rights.

We continue to see persistent barriers to opportunity based on race, national origin, color, religion, sex, including gender identity and sexual orientation, age, disability and genetic information.

We have yet to close the gender wage gap, in some work places, Jim Crow style tactics and overt discrimination persist. As the written testimony we've received shows, women and minorities remain severely underrepresented in many high wage workplaces. And recent events in Ferguson, Missouri and other communities remind us of the need for greater diversity in our police forces across America.

At the same time we also face new, more subtle forms of discrimination, and emerging issues such as ensuring that the principal of equality for LGBT persons at the court, affirmed last week, protects the right to work as well as the right to marry.

And as our workforce continues to change and workers continue to be drawn to America's promise of opportunity; we must guard against discriminatory abuses of low income immigrant and migrant workers who are among the nation's most vulnerable workers.

Fortunately, the EEOC's mission and statutory authority have grown to meet new challenges, while keeping pace with the old. That expanded statutory authority includes, of course, the landmark Americans with Disabilities Act, for which we will celebrate the 25th anniversary this month, and which has allowed millions of persons with disabilities to enter the workforce and reach their full potential.

Since opening its doors, the EEOC also has received authority to enforce the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act. As a result, the Agency's workload has grown substantially. Thus, it's crucial, as much now as ever, that the EEOC use its resources wisely. The Commission's 50th anniversary provides us with a unique opportunity to reflect on the Agency's achievements and to consider how we can best use our limited resources in the future. Thank you for commemorating it with us, and I look forward to the panel's suggestions.

Madam Chair, I thank you for this important hearing, and I yield back my time.

CHAIR YANG: Thank you, Commissioners.

The item on today's agenda is, EEOC at 50: Progress and Continuing Challenges in Eradicating Employment Discrimination. It is my pleasure to welcome and introduce our panel of presenters.

Ron Edwards is the Director of Program Research and Surveys Division in EEOC's Office of Research, Information and Planning. Donald Tomaskovic.Devey is a professor at the University of Massachusetts, Amherst. Jocelyn Frye is a Senior Fellow at the Center for American Progress. Rachel Godsil, who is joining us by VTC, is a Professor of Law at Seton Hall University School of Law. Unfortunately, she may not be able to stay past her testimony for the questions, but we are glad to have her for as long as she is available. Solon Barocas is a Research Associate at the Center for Information Technology at Princeton University. Darrell S. Gay is a partner at Arent Fox, LLP. And finally, we are honored to have our former Chair of the EEOC and currently Senior Vice President and Chief Talent and Diversity Officer at Loma Linda University Health, the Honorable, Cari Dominguez.

Today's meeting will consist of one panel, and then we will open the floor for questions and comments from members of the Commission. Each of you on the panel will have a limited amount of time to make oral presentations today; but your complete written statements will be available on our website,, and it will be placed in the meeting record.

Please note that we are using the timing lights at the center of the console in front of me. The yellow light will appear when you have one minute remaining for your statement, and the red light will appear when your allotted time expires.

Commissioners' questions and comments will begin after all of you have completed your opening statements.

Again, we are very pleased to have such an exceptional panel of experts with us today, and we thank you for being here.

We will begin with Ron Edwards.

DR. EDWARDS: Thank you for the privilege of speaking before the Commission to celebrate this important anniversary.

I represent the Office of Research, Information and Planning which, as one of its functions, has been collecting the EEO.1 report since the beginning of the Commission.

The EEO.1 collects workforce information from private sector employers indicating the race, ethnicity and gender of their employees by major job group. The EEO.1 data offers an excellent insight into how the diversity of the workforce has changed since the EEOC opened its doors.

In my presentation, I will provide a relatively simple description of how our national private sector workforce has changed over the last 50 years. It is not an attempt to establish that the Commission specifically caused these changes; but it is certainly a picture of increased workforce diversity and even greater diversity within that diversity. So let me explain that last sort of strange statement.

As researchers at EEOC, we began this little project by looking at one of our initial studies which was Melvin Humphrey's 1977 study, Black Experiences vs. Black Expectations. As far as we know, that was the first attempt to look at EE0.1 data over time. And he focused on the penetration and occupational position of African Americans in the EEO.1 universe from 1969 to 1974. It was also the first time that an EEOC research publication took sort of an analytic approach to these issues.

In preparing our reexamination, it was striking that the 1977 report had focused on African Americans, and now, 50 years later; the focus does not fully capture the American workforce.

In our current look at the data; it focuses on nine data points from 1966 to 2013. It is organized for this presentation by EEO.1 job groups. The most recent data available is from the 2013 survey and we will be closing the 2014 survey shortly.

The data tells an interesting story about how our workforce has become increasingly more diverse over the last 50 years. Let's start with the job category of officials and managers. And the Chair alluded to this earlier, that the story here is quite dramatic.

In 1966, African Americans, Hispanics and Asian Americans, American Indians and Alaskan Natives each made up less than one percent of the officials and managers job category. The participation rates for all four groups have increased by five to seven times over the last 50 years, with the exception of American Indians and Alaskan Natives increasing by about three times. The percentage of women officials and managers increased from less than 10 percent to nearly 40 percent. So 50 years ago, your chance of working for an African American was less than 1 in 100.

In the professional job category, these jobs also increased by approximately the same amount, that is, five to seven times. The exceptions are Asian Americans; that increased by 10 percentage points and women by about 40 percentage points.

In fact, the participation rate for women professionals skyrocketed from roughly 14 percent in 1966 to 53.2 percent in 2013, comprising the highest percentage job increase across the period for any demographic group in any job category.

African Americans, Alaskan Natives, Asian Americans and Hispanic participation rates show positive increases in all job categories examined from the data reported in 1966 to 2013.

Participation rates for technicians changed in the same way as managers and professionals. African Americans increased from 4.1 percent of all technicians, to 13.3 percent in 2013. Hispanics increased from 1.4 percent in 1966 to slightly over 10 percent in 2013. Similarly, women increased by almost 18.2 percentage points to represent about half of all technicians today.

Non.whites were also poorly represented as sales workers in 1966. African Americans made up 2.4 percent of employment in this job group; Asians, 0.4 percent; Hispanics, 1.4 percent; and women, 38.8 percent.

So, if you bought something in 1966, at least from a large retailer; you probably bought it from someone who was white.

By 2013, this shifts to 14.1 percent for African Americans; 4 percent for Asian Americans; 13.7 percent for Hispanics; and women increased from about a third of all sales workers to more than half at 56 percent.

The employment of office and clerical workers still continues to be dominated by women. It's a traditional job for women, but it tells an interesting story.

In 1966, women made up 72.4 percent of this job category. But during this time, as we know that women were expanding their entry into the workforce; the percentage of women office and clerical workers actually increases to 78.3 percent in 1972 and 80.3 percent in 2002, but then it drops. It drops down to 75.6 percent in 2013. So some might actually see this as a positive development as women begin to exit a traditional job for them.

Blue collar workers tell a very consistent story. And blue collar work, as you see over that time period, a major change in the Hispanic employment. Hispanic employment increases dramatically from being very marginal at the beginning of the time period, to significant by the end.

An example of that is their participation as craft workers. Craft workers increasingly became dominated by Hispanics who had higher rates than any other non.white demographic groups by 2002.

Over this time period, Hispanic employment increased from less than 2 percent, to 15.9 percent. And so while this story of Hispanic employment is dramatic over the last 50 years; the story for African Americans and women becomes a little bit more complex.

And one of the interesting things about the employment of African Americans and craft workers is that, at the beginning of the period in 1966; they actually had a lower percentage than women had in that particular job group. And where that was a tremendously a male dominated occupation; women still had a higher percentage in that particular job group.

The story for operatives is very similar in terms of growth of Hispanic employees in that group as does the employment of Hispanic laborers.

And that's my time.

DR. TOMASKOVIC.DEVEY: Thank you very much for the opportunity to testify today. It's really an honor for me to be here.

I'm going to talk .. the first half of my comments are going to be about the role of the EEOC in historical change, and then what the research literature suggests are good practices or best practices in employment.

In the second half I'm going to talk about the role of social science in both thinking about systemic bias, one of the .. and also the strategic enforcement plan for the EEOC. So I'm going to start with the historical story.

In our research on equal opportunity progress since the Civil Rights Act, Kevin Stainback and I identified three distinct historical eras in enforcement eras .. efforts, sorry .. and EEO progress.

During that initial period between 1960 and 1972, there was both social movement and legislative pressures on employers. The EEOC was formed, began to define best practices, issue legal opinions and importantly, for many of us, collect data on workplace race and sex composition.

We describe this as a period of corporate uncertainty. Employers were being pressured by the Civil Rights Movement and new legislation, the EEOC and OFCCP were gearing up, but there was no case law. There was no appropriate human resource practices that employers agreed on.

Employers, in this sense, were uncertain about what they needed to do, but they were fairly certain they would shortly be held accountable. And they were going to be held accountable for racial progress. And what happened is, we very rapidly in this period see racial progress in employment, especially for black men. So there's a lesson here. Uncertainty is a powerful motivator to change your behavior.

In the 60's the EEOC and OFCCP both made clear that their mandate was about race, not gender. So despite the Civil Rights Act .. including gender as a protected category; there was essentially no progress for women in this early period, all right?

So here's a second lesson: targeting a particular protected group matters. It's not just the law.

So the next period, from '72 to '80, we call the short regulatory decade. During this period, the EEOC was given the power to bring discrimination cases to court; it targeted prominent national firms and especially employers in the South, and it continued its active promulgation of best practices and legal interpretations of emerging EEO law. This short period produced the most widespread equal opportunity employment progress extending now to white women and black women as well as black men.

Lesson three: strategic enforcement works, but by 1980 the Civil Rights Movement was essentially dead. A national politics of racial backlash had taken its place; legal decisions were shifting toward favoring defendants and both funding and political support for the EEOC withered.

After 1980, there were few employment gains for black men and women. There were some, but few. But white women continued to make gains and as the women's movement lost steam in the '90's; white women's gains also eventually stalled. And today, many industries and firms now show patterns of resegregation.

So lesson four: political pressure matters; and lesson five, EEO gains are reversible.

So today, it's important to celebrate that we have moved from a national, racial and gender apartheid of the Pre.Civil Rights Act, period. But also to recognize that we are in an era of local discrimination and local equal opportunity.

For enforcement to work now, we have to ask different questions. We have to ask, where is discrimination and segregation high or rising? We should also be asking, and I think this is very important; who are the equal opportunity employers?

I'm going to say a little bit about best practices. So actually .. I'm going to skip best practices given my time.

I'm going to say a little bit about systemic biases. I think this is a social science question and that if we are going to identify the firms, the regions, the localities, that have high or rising discrimination; this requires us to look at the data.

It's not that hard to do from a social science point of view. My written testimony has a good deal of examples along these lines, and it's also not inconsistent with the case law. In case law we typically ask, okay, what's the baseline expectation for employment? And then we make some principle comparisons at the level of the individual firms that have been charged. This is possible to do proactively, and it can inform Commissioner charges; it can inform the efficient allocation of EEOC resources in response to charges; and it can also be used to monitor firms after charges have been conciliated or litigated.

And such analyses should not be limited to the private sector. There's a wealth of information available to the EEOC right now on state and local governments and on federal employment. And perhaps we should be looking at our own houses.

So finally, I'm going to talk a little bit about the strategic enforcement plan which has legal education and research initiatives. And I'm going to say a little bit about how the research says something about each.

Much of the early success of the EEOC happened through its interpretation of law ahead of the courts. The EEOC is doing this today around LGBT employment, but could be doing more. And we could think about discrimination associated with criminal background and credit checks in particular.

On the education side, and this does go to the best practices discussion I skipped; we've learned recently that many of the practices endorsed by the EEOC and the courts do not work. So systematic attention to the research literature on best practices and the encouragement of new research should become routine EEOC functions; they shouldn't be on the margin.

On the research side, I've got a few recommendations and then I'll be done.

Actually, my time is up so I'd ask someone to ask me about the research recommendations. Thank you very much.

CHAIR YANG: Thank you. We will be sure to do that.

Ms. Frye.

MS. FRYE: Thank you. And it's a pleasure to be here to celebrate with you the 50th anniversary of the Equal Employment Opportunity Commission. And I am going to focus a little bit on history and a little bit on present day; but really try to spend the bulk of my time focusing on forward looking recommendations.

As others have already said, the EEOC has played a vital role in the progress not only of women, but people of color, older workers, people with disabilities; the EEOC has really been on the front lines of combatting discrimination since its inception.

But as the previous panelist just alluded to, the experience of women has been unique. As many of you know, the inclusion of sex discrimination in employment in Title VII was an afterthought and in some tales as it's told, was an effort to actually kill the law entirely. And the world was very different and sex discrimination was really engrained in the fabric of the workplace and that was true for both women .. white women and women of color. And women of color also dealt with the additional distinction of coming out of a system of legalized race discrimination that meant that they were also confronting both bias around race and gender.

And in this environment, early on, the EEOC was constrained simply by its own authority. But nonetheless, over the years did help make progress in terms of expanding rights around sexual harassment, protections for pregnant workers, up until the present day.

I want to talk a little bit about the present day and where we stand, because while we can look back and say the world is very different; we also know that there are challenges that remain today in the workplace.

And again, some people have touched on these points. Women continue to earn less than their male counterparts; they are disproportionately in minimum wage jobs, women of color even more so. Women are still more likely to be in traditionally female jobs even though there's been progress certainly. And even though they have, as Mr. Edwards talked about, moved into professional occupations; they're still underrepresented when you get to the highest levels of jobs.

And then when you look at the EEOC's data just in terms of discrimination charges, you see that sex discrimination charges continue to be one of the largest area of charges that the Commission has received and that's been true since almost its inception.

Pregnancy discrimination charges have risen enormously, although there is some more recent data that suggests some promising developments and even areas like retaliation, that is not publicly reported by gender, at least based on work that I did a few years ago; if you look at those broken down by race and gender, they're disproportionately filed by women.

So it suggests that there are areas where women are continuing to struggle in the workplace and I think offers some guidance around recommendations in terms of where the Commission could go looking forward to the next 50 years where hopefully the mission will not be as difficult and challenging.

I want to highlight a few areas where I think the Commission could focus. One is around continuing the effort around equal pay and closing the wage gap. And suffice it to say, the wage gap is due to a number of factors.

The EEOC is one of many places that has a role to play. The EEOC has done great work around wage discrimination; but certainly there's more to do and thinking about ways to bring more cases and also look at systemic practices.

The EEOC has an enormous amount of data about pay discrimination. People think of it only in gender terms, but as you well know; pay discrimination is far more sophisticated than that. There are pay cases that are brought .. most of your cases are brought under Title VII, not the Equal Pay Act. A third of those cases are brought by men. There are cases that are brought under the ADA and other laws and I think just a deeper understanding of the different manifestations of pay discrimination could be helpful in promoting best practices.

And also there may be opportunities to do more industry specific targeting based on your data, maybe even collaborating with other agencies. So I think there's some work to do just in looking at the data and maybe targeting that work even more deeply.

Second, is tackling workplace barriers facing mothers, pregnant women and women who are caregivers. There's a wealth of data that shows a particular pay gap with .. for women who are moms or who people think are about to become moms. And that is deeply rooted in our history around stereotypes and around women and care giving and the Commission can do work both around pregnancy discrimination .. I know it is a .. has been a strategic priority which is been enormously helpful. There's your recent data that shows a slight decline in pregnancy discrimination charges. It's a little unclear because your more recent data looks at charges filed with the EEOC as opposed to the FEPAs, and it's not clear whether that trend is also happening with the FEPAs, but there may be something promising there in terms of best practices.

It's also .. you have that great guidance on caregiving discrimination. That may be another area to look at, you know, what do we know about current developments in the workplace? Is there more we can learn around that data to figure out if there's more best practices we can talk about?

The third area I wanted to flag was a renewed attention on the glass ceiling and the sticky floor. Those issues still remain notwithstanding all of the progress that we've made. And even though we've made a lot of progress; women are still hitting the glass ceiling and a lot of women are still stuck.

There could be a way to work with some of the other agencies to convene experts around these issues. There's a lot to learn from the Department of Labor. OFCCP has been doing glass ceiling reviews for many years and there may be opportunities to learn from what they've done to figure out if there's steps that we could take going forward.

Fourth, I want to mention .. focusing, in particular, on challenges facing women of color. Your data is really rich with information and there is, when you dig into that data, evidence that there are certain types of charges where women of color are more likely to bring them. Pregnancy discrimination is a place where that's been true; that much of the increase has been fueled by charges filed by women of color. So it's worth looking at whether or not there are particular industries where they're facing challenges.

And lastly, I'll mention two quick things. One is .. it's amazing how time flies .. is just strengthening overall and your overall enforcement efforts and using the strategic enforcement plan that you've talked about in the your plan .. strategic enforcement teams to think about increased investment in systemic enforcement, increasing litigation efforts and figuring out ways to deploy those strategic enforcement teams strategically.

And lastly, collaborating with business. That, I think, is particular important and sometimes we forget about. But there are lots of, actually, great businesses doing great work and there may be an opportunity to look at voluntary measures.

And lastly, let me just say that the Commission has been on the front lines for 50 years and has been really a leader on antidiscrimination work and has a lot to contribute going forward to the work of ensuring that all of our workplaces are free of discrimination. So thank you for the opportunity.

CHAIR YANG: Thank you so much, Ms. Frye.

And now Professor Godsil is joining us by VTC.

MS. GODSIL: Thank you so much. I deeply appreciate the opportunity to provide testimony, by video no less, to celebrate the EEOC's 50th anniversary.

Along with my role at Seton Hall as a law professor, I'm also the Co.founder and Director of Research at the Perception Institute which is a national consortium focusing on the role of the mind sciences in law, policy and institutional practice. And it's on the mind sciences that I'm hoping to offer testimony today.

And particularly, I'd like to focus both on implicit bias, which has received quite a bit of attention in the media recently; as well as racial anxiety which is a phenomenon that is somewhat less known, but creates enormous obstacles to opportunity in the workplace.

Social science research shows that the vast majority of us hold implicit biases which mean automatic attitudes or stereotypes about people based upon race, ethnicity, gender, sexual orientation, gender identity, disability, age, all of the identity categories that differ from the majority as well as the intersections of those without our even realizing it.

And as I mentioned, less recognized is the role that racial anxiety can play. And racial anxiety refers to the concern or fear that people have before or during interracial interactions.

People of color often worry about being subject to discrimination during interracial interactions; but many white people without, again, quite realizing it, are concerned that their actions will result in their appearing prejudiced.

And, racial anxiety can lead to behaviors that actually look quite a bit like bias: less eye contact, less warmth, greater physical distance and even completely avoiding interactions with people of other races.

And these behaviors obviously can have significant interactions in workplaces: shorter interviews between white interviewers and non.white applicants, supervisors engaging in less interaction, less mentoring, supervisors being concerned about providing the necessary critical feedback. And so the combination of implicit bias, which can result in harsher critiques and sometimes unwarranted critiques as I'll discuss in a second, and racial anxiety; can create a whipsawed effect in which people of color and women and, you know, people with different gender identities, experience considerable obstacles to both hiring, retention, promotion and feeling as though they're valued members in the workplace.

So, what I'd like to focus my testimony on is a little bit about implicit bias and racial anxiety, and then most significantly, the interventions that employers can play a crucial role in establishing so that these can change.

So again, implicit bias is a behavior that can manifest either in decision making, so resume review, evaluation of work product; but it can also result in interaction effects such as the black lawyer who is assumed to work in the mail room; or the female investment banker who is whipsawed between claims that she is too timid and too aggressive; the query whether a Latino or Asian American speaks English; or the question, "Where are you really from?" All of which can have an effect on whether or not one feels that one belongs in the workplace.

What's probably particularly important for employers to realize is, we think we know merit when we see it. We think we know merit when we see it in a resume, we think we know merit when we see it in work product; but recent studies have shown that in fact, we view material through a lens of bias even when we ourselves are not consciously bias.

A particularly vivid example is by a research firm, Nextions, which provided 60 law partners with a memo. Half of the partners thought the memo was written by an African American associate who went to NYU, the other half thought it was written by a white associate who went to NYU. And what's most interesting is, when people thought the memo was written by a white associate; they found maybe 5.8 out of 7 intentionally imbedded spelling and grammatical errors. But when they thought the identical memo was written by a black associate, they found double the number.

So actually, to be clear, when they thought it was a white associate, 2.9 out of 7, when they thought it was a black associate, 5.8 out of 7. Why would this happen?

Clearly these partners aren't biased. We know law partners have a great desire to have diversity in the workplace; but when the partners saw that first spelling error; it triggered something that social scientists call confirmation bias, which is a concern that this underlying stereotype of associates perhaps not being up to snuff, would be affirmed making them hyper vigilant.

And some of the comments associated when it was white Tom Meyer, again, same memo, he was seen as having great potential; black Tom Meyer, the comment was made, can't believe he went to NYU. So this is obviously of enormous concern and it is not just something that is experienced by African Americans.

Research by Jerry Kang from UCLA showed that people listening to an identical deposition when they thought it was a deposition by a white litigator rated it highly. When they thought it was a deposition, taken by an Asian American litigator, rated it significantly less highly. So this is a phenomenon that can occur to various different groups.

So clearly, addressing implicit bias is going to be crucial for again, resume review, hiring, retention and promotion; but if we focus only on the bias lens, which is a traditional focus for those of us who are concerned about discrimination; we risk triggering racial anxiety.

And while this anxiety may seem not to be as significant; if this anxiety leads to the shorter interview because someone is worried about saying the wrong thing; if it prevents supervisors from giving necessary feedback, it combined with implicit bias, can create the kind of obstacles that will result in, as we see in many workplaces, lower retention rates and less promotion for people of color and women and others with different gender identities.

So the EEOC has obviously a congressional mandate and a unique institutional opportunity to play a role, to catalyze employers to take the interventions that have been identified by researchers to both address implicit bias, to reduce its effect in all of these important areas such as hiring and interviews and retention.

And there are a number of interventions that have been identified and have been successful. Many of these are being used by judges and by doctors and by others and they can be used throughout our workplaces. But in addition to recognize the need to think about and prevent racial anxiety and to create structures in the environment such as providing thoughtful suggestions on interracial mentoring, and there are excellent suggestions that have been shown to reduce racial anxiety and to lead to far better interactions and better mentoring.

And I would .. again, I regret the opportunity that I can't engage in the discussion. I hope this information is useful and I celebrate the EEOC on its 50th anniversary. Thank you so much for your time.

CHAIR YANG: Thank you, Professor Godsil.

And now, Dr. Barocas.

DR. BAROCAS: Madam Chair and Commissioners, thank you very much for the opportunity to be here to celebrate the 50th anniversary of the Commission and to talk to you today a little bit about big data.

In my testimony today, I'll try to explain what this term means and I'll describe how it's being used by employers. I'll also take some time to explain the rather subtle ways that even well.meaning employers that rely on big data may end up discriminating unintentionally.

CHAIR YANG: Could you pull the mike closer? Thank you.

DR. BAROCAS: Is that okay? Thanks. All the way? Okay. So big data, as a term of art, actually originates among technical practitioners who found that they were pushing up against the limits of their infrastructure and technology; that the data in scope and size was simply overwhelming these technologies.

In practice, however, this term has taken on a more expansive meaning and is really now a catchall for all of the things that are basically a byproduct of the digital mediation now core to many aspects of our life. The resulting data sets are large, granular and seemingly comprehensive.

More important though, is that these data sets lend themselves to useful computer automated analysis. In particular, the distinguishing feature of big data seems to be the ability to detect useful patterns in these data sets that can then inform future decision making.

So you might think then that employers would be rightfully excited by these opportunities because they can rely on big data to find and automate the process of searching for good employees.

In particular, data mining can reveal distinguishing characteristics of prior employees that excelled at the job and indicate to employers what they should be looking for in applicants.

Data mining therefore promises to replace intuition, hunches and generalizations with precise evidence based rules. In so doing, data mining has the potential to help reduce discrimination by forcing decisions onto a more reliable empirical foundation and, by formalizing decision making procedures; limit the opportunity for implicit bias to influence the assessment procedure, precisely the things that have been discussed by previous panelists.

I'll say, however, that it's dangerously naive to believe that big data can automatically eliminate human bias from decision making, can somehow transform institutional cultures and up end deeply entrenched structures. In many cases, data mining can reproduce these same dynamics in ways that are simply less obvious. And I'll try to describe a few of those right now.

Stated simply, a data.driven decision procedure, what you might call an algorithm, is only as good as the data upon which it has been developed. And data is frequently imperfect in ways that allow these algorithms to inherit the prejudices and biases of previous decision.makers.

In the first case, bringing data to bear on hiring decisions is really straightforward. When employers ask for a tool that will automatically surface good employees from a pool of applicants; data miners must translate this into something quite specific. They need to actually say, what measurable property are we looking for in candidates? And this process is often described as the art of data mining. It is a necessarily subjective process of trying to find some measurable property that will then serve as a good predictor of performance.

Defining good in this case, formalizing good in this way, can have a more or less disparate impact on protected groups. Some definitions will produce a more equitable outcome whereas other definitions of good could have a more disparate impact.

Of course, there's the salutary effect of forcing a decision maker to think concretely about what good really means in this case; but we need to actually encourage employers to think about those decisions more carefully.

Second, we can also point out that, data mining learns by example. It tries to draw from historical evidence to inform future decision making. And because it's drawing on historical examples, it's vulnerable to two rather subtle problems.

The first is that, prejudice likely played a role in previous decision making that is being used as examples. So for example, if a computer is being fed decisions .. prior decisions which female and black applicants have been systematically passed over; the machine will simply relearn that same exact prejudice.

Similarly, data mining also will be vulnerable to the problem of dealing with a bias sample of the population. If, for example, certain members of the population simply haven't been included in a data set; data mining itself will then struggle to figure out how to assess those applicants as well.

There's another issue which is really about the granularity of the data. No decision is going to be based on all of the relevant factors. We're simply going to have to make do with what we can collect. And so, oftentimes, employers rely on course proxies or often easy to obtain or inexpensive predictors.

The best example of this would be credentials. However, credentials are often are very imperfect. There are oftentimes when employees would be very good at a job, but lack the necessary credential to demonstrate that they would be so, and so big data seems to be an opportunity to overcome this very obvious limitation. Unfortunately, big data is often quite costly and therefore, collecting the necessary information to discover that a candidate actually does have the skills, is not, itself, always an easy thing to do.

The question, however, is, should protected classes be subject to less accurate assessments simply because it costs more money to collect the necessary data to make those more precise distinctions?

Finally, I want to point out too that there are tricky problems involving cases where the actual factors being considered in making a job decision that is accurate, might also, at the same time, be highly correlated with membership in a protected class.

So, we have an example that comes from the field. Companies have developed tools to help employers that have high turnover, try to predict who will actually depart their job under a certain .. during a certain period of time with the goal here being, they want to reduce turnover and minimize hiring decisions that result in quick turnover.

However, what they've discovered is that the best predictor of turnover actually tends to be the distance the employee lives from work. But given the fact that there is racial segregation in housing; distance from work also tends to be a good predictor of race.

Therefore, some companies decide not to use this factor even though it is the best statistical predictor whereas others have. And what this shows is, that it's often not clear how correlated some factor must be to be seen as worrisome or how justifiably relevant it is despite the fact that it is highly correlated.

So I'll simply conclude by saying that I think the EEOC is in a good position to develop greater expertise on these issues so as to encourage employers to make considered well thought through use of these technologies. And in particular, I think that these technologies can be a great force for good for civil rights and to the degree to which uncertainty prevents employers from using these tools would be a great, I think, pity.

Before, I think the degree to which the EEOC can provide clear guidance to employers to really use these technologies with these pitfalls in mind, would be a great benefit. Thanks very much.

CHAIR YANG: Thank you Dr. Barocas.

Now, Mr. Gay.

MR. GAY: Thank you, ma'am.

Madam Chair, distinguished Commissioners, thank you for this opportunity to be part of this meeting.

As been noted, a lot has changed over the last fifty years, but unfortunately as has been seen by the news in the last few weeks; some things have not changed, and unfortunately, America has a way to go before it gets away from all issues of discrimination.

The purpose of my being here today is to discuss what employers are doing to foster work environments free of discrimination; what they might do better and also to discuss my perspective on the EEOC, its activities and some suggestions that I hope you guys might find beneficial.

My presentation will reflect both my thoughts and some of my recommendations.

So let's discuss what employers are doing. One, more employers are creating very effective policies and codes of conduct that spell out what is permissible, what is not, and what is expected by management employees; and how employees should handle issues when they develop concerns about their work environment.

These policies, though, when they are created, must be actually used, not put on a shelf. They must be given, disseminated and once they're disseminated; it's very important that the employer makes sure that all of the employees receive them, read them and acknowledge the fact that they understand them; that's a very important factor. Too frequently I've seen where sometimes companies create very great policies, but employees say they've never seen them, don't know what they mean and similarly, the management.

Now, once you have all of these policies in place, what next? It's not good to have great policies, if people do not really understand what they mean and how to use them. That requires very, very, effective training.

There are two types of training that typically we see in the work environment. One is, the classic sensitivity training which, where we have more touchy feely. Let's make sure we understand the differences in races, sexes, genders, ethnicities and be as sensitive to that between working with each other.

The other training which I think is very important, is management training; getting the managers and supervisors not just to understand EEO laws, understanding the process for handling concerns, but also, very importantly, understanding how to manage. It's in my experience that in a lot of the things .. reasons why companies get sued, they have issues with their employees, isn't so much what the companies are doing, but how they're doing it.

Managers are usually promoted because of their technical skills or some great academic achievement or something they've done personally. But they're not necessarily promoted because of their great management skill set. And most managers are never trained how to manage. They're given a title and they're given a job and they say, "Be responsible;" but they're never taught what that means or how to effectively achieve the goals of being a good manager.

Each work environment is different. And so when you do this training, you've got to tailor the training to the work environment. I've seen too often that work training sometimes is the canned training. We're going to use the same training for each work environment and it cannot work. So I'd recommend to companies that training be tailored to the work environment and the particular issues that both historically and currently exist at that work environment.

That means you have to have people who are really working with managers. I've always recommended training managers in a small segment and I think companies are doing more and more of that. They're recognizing the importance of the idea of having managers understanding how to manage.

At the end of the day, it's got to be understood, companies get no benefit from having employees unhappy, they get no benefit from companies with employees suing them; it's a detriment from the production of the company and it's no benefit to anybody.

Also, overturning the workforce over and over again creates additional costs. The costs of identifying staff, training staff, hiring staff is a costly factor so companies do not want to do that. That is why more and more companies that are recognizing it is a good effect of getting the good policies in place, get the training in place and achieving that.

One of the most important things, I think, that can be done by managers in doing this, is having senior management present as part of the training. To the degree that mid-level, junior level and even some higher level managers know that the CEO and other members of the C.suite are participating in the training, taking it seriously and conveying down to everybody how important they see this training; goes a long way to everyone taking it seriously and really implementing it and making it effective.

Another thing companies are doing, is they're using early intervention resolution. More and more companies are hiring more people internally, lawyers, HR people, to make sure that when issues come up, they address them quickly. They've recognized that it's important for the employees to feel that their issues are being addressed; that they're being heard.

And again, it goes back to what I said earlier; people sue companies more because of what they .. how they feel the company treated them more than what the company actually did. If you give an employee a perception that they feel you're hearing them, you're treating them fairly, you're listening to them, you're really considering what the issues are; they're less likely to concern themselves or feel they've been treated improperly.

Another thing a lot of companies are doing is, they're creating offices of diversity. They're creating offices that are responsible for looking at, understanding and developing and enforcing .. not enforcing, but pushing diversity. I find more companies .. we talked about law firms earlier. More companies are doing that more effectively than law firms are doing it. They're really, really taking very seriously the importance of diversity in the workplace. They've done studies, they see that they're constituency basis, people who are their customers, are diverse. And they recognize that it's important that the people doing work for those people are also diverse; so companies have recognized this, embraced this and they've taken it very seriously employing people to be chief diversity officers with the staff, to work for that objective to get diversity effective in the workplace.

Now, in looking at having diversity offices, I've always recommended that one, the chief CDO should be someone who is in a C.suite level, which means, he should be someone reporting to the, in my opinion, either the board of directors, the chairman of the board of directors, or the CEO.

I think it's problematic when the CDO reports to the HR director or someone along those lines, because it suggests that it's not that important. I think it's also important and I'd recommend to companies that when you hire a CDO, that you hire someone who has either HR and/or legal experience.

A concern I think companies should be aware of, is the fact that when you hire someone who might have been a PR person, it looks like you're hiring someone to create a spokesperson image; the company is doing the right thing versus really doing the right thing. You want to convey to both the outside public and to the people inside the staff that you are achieving goals set forth.

Companies also doing things involving themselves with organizations that help develop pipeline. Organizations like, Prep for Prep, SEO, and Metrocall ABC are doing a great job at helping companies support economically and involvement to develop a pipeline.

Now, let's look to the relationship between the EEOC and employees. Time is running out so I'll move this quickly.

I think the most important thing that I must convey as an outside counsel that appears for the Agency, it is so important that we see the EEOC as a neutral body, not as an adverse body. I think sometimes the feeling is, you're viewing us as the enemy. The ability for us to work collaboratively is so important to getting something done. We can work together well if we just achieve that goal.

In my testimony, written testimony, I give a story about a New York Director, Spencer Louis, the District Director called myself in and other .. outside lawyer, to come and meet with the people and discuss how we approach issues. It was a very effective thing.

I think the EEOC should do more of what you're doing with your task force and harassment of developing task force composed of various peoples' experiences to get together, study the issues and work together when you're producing your guidances to the population to help you understand both .. not only what can be done, but how all of this can be perceived as being done. It would go a long way to being productive.

I think my time is up, so thank you.

CHAIR YANG: Thank you very much, Mr. Gay.

And now the Honorable Cari Dominguez.

MS. DOMINGUEZ: Thank you. Thank you very much, Madam Chair and greetings to you and to Commissioners Barker, Feldblum, Lipnic and Burrows.

It really, really is a great privilege for me to be back at the Commission on this very special day. And I want to thank you for the invitation and for the warm welcome that I have received. And I also want to add my heartiest congratulations to the entire EEOC family for the enduring efforts that they have made towards eradicating employment discrimination in the workplace over the last 50 years.

This morning, I'm honored to be part of this very prestigious panel of experts, and as I look at them .. first of all, I agree with everything they've said, so my role is pretty easy. But as I look at them, I also know that I was born first.

I have been blessed with length of years, which has allowed me to look at equal employment opportunity from just about every vantage point possible. And I agree with what you said in terms of the conclusion that constant vigilance continues to be required to eradicate workplace discrimination.

You know, when my sons were little, they loved to play this game which is about hammering down alligators. And they would hammer down an alligator and another one would pop up, sometimes two and three at the same time. The alligators of today might look a little different, but they're alligators nevertheless. We have to continue to be vigilant, to make sure that if there's subtleties, difficulties in detecting attitudinal bias; that we stay vigilant and on top of things. Just because we've dealt with it before, doesn't mean that it won't surface again.

This morning I have been asked to comment on the employment challenges that employers are facing and how they're dealing with those challenges. What's keeping CEOs up at night is a dramatically changing business environment and the constant pressures that they're facing from shareholders and investors. This is also happening at a time when the explosive demographics that you've talked about are taking place with more and more cities and counties and states no longer having a majority population.

The primary challenge for employers has been to respond to these pressures with the talent that we have available. CEOs consistently rank attracting and retaining top talent as their top priority or a key priority. Pipelines into mid and upper level management are leaking out diverse talent because of greater competition, more employee options and lifestyle choices that are driving the incoming generations of workers towards greater independence and less reliance on a particular company.

So what are employers doing? Some of it has been mentioned. Enlightened employers have integrated diversity and inclusion into their business strategies. They have aligned their employment practices and reward structures along diversity outcomes. They have used tools such as diversity scorecards to measure progress and the diversity results to performance incentive payouts. So you align behaviors with compensation.

It's true that social media and technology have changed the face of the hiring process, but enlightened employers have addressed this issue by establishing robust monitoring systems. At the end of the day, it doesn't matter where applicants come from, as long as they reflect diversity that exists in the marketplace.

In terms of some of the specific issues that I see looming, let me point to three particular areas: number one, is a candidate screening process which has been alluded to already. Employers are turning to software analytics to assess up front the potential match of a candidate to a job. These screening services are intended to narrow the pool of candidates to ones most closely fitting the position requirements. Such software products are growing in popularity, they're exploding.

Now, once these screening services identify the presumed best candidates; employers often follow up with assessment tools designed to evaluate the applicant's fit with the organization's culture and values. These values.based assessments are conducted using peer.based and behavior.based interviewing, the challenge being that responses offered by the applicant may be open to highly subjective interpretations.

Again, a strong monitoring system designed to evaluate every step in the selection process can identify and address adverse impact or disparate treatment before it becomes an issue.

The second area I'd like to emphasize is that that relates to older workers. The multigenerational workplace has brought about significant shifts in attitudes and perceptions, potentially to the detriment of older workers. The average age of incoming CEOs has been consistently dropping and the number of CEOs under 40 continues to rise, especially in industries such as technology.

Older workers face perceptions that question their flexibility, adaptability and technology proficiency. They increasingly report to a generation of younger managers possessing contacts and sources drawn from their own networking background which is typically their contemporaries.

Hiring decisions may be influenced by how much "runway" is left on one's career. While age is no guarantee of one's length of stay in a job; it maybe a subtle consideration requiring constant monitoring.

And the third and final is health benefits and the potential of running afoul on disability issues. The rising cost of health insurance premiums has prompted employers to establish wellness programs designed to promote fitness and healthier lifestyles. Employers may differentiate their plans by offering reduced premiums if the employee agrees to certain terms and conditions such as weight management, keeping track of their blood pressure, not smoking and staying active. When making selection decisions, the potential exists for employers to focus on lifestyle behaviors considered hazardous to one's health and costly to the employer.

While I wholeheartedly support a healthy and fit lifestyle, I am concerned that the emphasis on eliminating potentially unhealthy behaviors could prove more costly to employers if faced with liabilities. This is an area needing some attention to ensure that employers don't enter a slippery slope counterproductive to their intentions.

The Commission should provide to the employer community as much guidance and technical assistance as possible on the issue of wellness programs.

In closing, let me commend you on the selection of priorities that make up the Commission's strategic enforcement plan. They're responsive and relevant to today's issues.

I also want to extend our appreciation for the Agency's efforts to educate and render technical assistance to the employer community. Such efforts assist us in promoting a fair and inclusive workplace.

Thank you for the invitation and again, "Happy Birthday to EEOC."

CHAIR YANG: Thank you, Cari, and to all of our panelists for that very helpful testimony.

I would now like to invite my fellow Commissioners to make any statements, comments or questions to the panelists. We will begin with a question and comment period of 35 minutes, and then we will have a short break, and then when we return from the break, we'll have another series of questions and comments.

And we will use the same timing system during the question and comment period as the presentations. The yellow light will appear when there is one minute remaining in the seven minute question and comment period, and the red light will appear when the time expires.

We will begin this first round of questions and I would like to ask you all a question about the practices that are working to remedy discrimination that we're seeing. And this picks up on the point that Professor Tomaskovic.Devey was making about best practices and training and how do we truly know what's working.

One thing we have done in our guidance, including our best practices guidance on caregiving discrimination, is to do a deep dive into the academic literature and the resources available to identify what practices are working.

And we know that there is limited information to truly demonstrate from an empirical standpoint some of the things that are working best. So what I'd be interested in hearing from you all is what are some of the ideas that you have on how we as an agency can collect better information about the practices that are working?

I know many employers are forward looking and are collecting good data on the practices that they've invested on, to advance and include people of all different backgrounds in their workforce, so we .. that's an issue that I'm very interested in hearing from you all on.

Mr. .. Professor.

DR. TOMASKOVIC.DEVEY: Thank you very much.

So I think that for the EEOC, there is an important opportunity here to take the .. get the academic community to do the work for you; which is to review the research that's out there, and so I think that work still needs to be done.

My reading of the research suggests that practices that at the organizational level, create accountability structures that have buy-in from leadership in the firm and that do not generate resistance and backlash among line managers, are the things that work.

And that .. so you really can't think about this as oh, I'm going to get my diversity training right. You will never get your diversity training right across companies. It's an organizational solution that's needed, and it's a local dance; and until you get line managers dancing, perhaps in line; it's going to be problematic.

So these are issues about accountability during the processes of hiring, making decisions, about figuring out how I'm going to reward merit, and there's a lot of research now that shows that if you do formal evaluations of workers; there tends to be very low levels of bias in the formal evaluations.

Then, you use informal mechanisms to provide raises, promotions, based on those formal evaluations and you have a problem. If you have accountability structures, however, you can see the problem, all right? This is internal to the organization's every day practices.

And so one of the big lessons that I think is out there, is you have to not alienate line managers; make them think they're being controlled. Instead, it has to become part of normal business practice. Thank you.

CHAIR YANG: Thank you. And Cari, given your experience from so many different perspectives, what do you think .. what is your recommendation for us as an agency in identifying practices that are working?

MS. DOMINGUEZ: I would certainly reaffirm what the Professor has said. I think that monitoring systems really help us from an employer perspective, identify the areas.

I also think that the CEO plays a pivotal role and I think if the Commission and the agencies are looking at diversity, would look at tone at the top, what I call tone at the top. Is the CEO setting the standards? Because when the CEO goes like this, everybody around that table goes like this, they support. And so, they treasure .. you know, we measure what we treasure, and so I think CEOs, looking at the commitment, looking at the policies and practices, the affirmation of statements is critical.

I also .. I'm a big believer in monitoring and certainly a big believer in what Darrell said in terms of training and using situational training.

You know, we have a sense that workplace is sort of stagnant. It is so dynamic and then the millennials don't absorb training the same way that the baby boomers did. So we really have to continue to evaluate. It's a constant evaluation process.

But I would say those three things: monitoring, the training, and certainly the CEO tone at the top.

CHAIR YANG: Thank you.

And Mr. Gay?

MR. GAY: Well, I'd agree with everything said so far. I would just add to the fact that you really have to understand that when you're looking at best practices you can think of a global concept, but I think it's got to be key to each company, each environment is different. And so there might need to be modification in conforming of those posed best practices to meet that environment. That is so important because the idea again is the canned concept of, if you do X you have a great result, it's not an automatic.

CHAIR YANG: Thank you.

And Ms. Frye?

MS. FRYE: Well, I certainly agree with the points about talking to employers, particularly employers that are doing good work. And I think there certainly are opportunities for, you know, looking at case studies to get a sense of how employers are actually implementing the law.

But I also think that your data is rich with, you know, giving us some guidance on sectors and occupations that are showing demonstrable progress in terms of increasing the numbers of women and people of color and diverse work forces. And looking at that data can also give some guidance in terms of, you know, where's progress being made? You know, where do gaps remain? So I think it's a more holistic analysis looking not exclusively at just employers, but also what does the data tell you?

And also, there's certainly academic research like the Professor who was on video pointed to with employees themselves, and analyzing sort of places where employees feel more empowered to, you know, both understand the law and understand what opportunities are out there.

So I think there's certainly a lot of information that the EEOC can cull to really get guidance on best practices.

CHAIR YANG: Thank you, and Dr. Barocas, based on your research .. I know we're running out of time, but what have you seen in terms of promising practices that are working in some of the selection area?

DR. BAROCAS: Yeah, I'll make two points. The first, I think, is that much of the focus of both, I think, the legal debate and also within the popular press, is largely focused on employment selection. And I actually think there's a suite of tools that actually use very similar techniques that are really about trying to suss out what about the workplace itself is responsible for different outcomes. So rather than treating work and performance as somewhat independent of the workplace; these tools look at the data to assess, well, what policy seems to be responsible for this particular path of the employee? And in particular, in large organizations where it's possible to basically do something along the lines of an experiment; you can begin to tease out what parts of the institution seem to be a barrier for certain employees.

And so I think there is a really exciting area that deserves more attention and it seems to me to be a natural extension of some of the monitoring that was already mentioned.

However, there's also a set of tools that are being developed within the computer science community which try to address a number of the issues that I identified in my testimony. And here, the focus is on trying to rid the data that trained these assessment tools of bias, of trying to compensate for the fact that there might be some kind of selection bias, or rather just generally bring integrative relief the fact that there are certain deficiencies. And the degree to which these tools can be, I think, adopted by employers, I think it will vastly improve the quality of those kinds of mechanisms.

CHAIR YANG: Well, thank you very much. I .. out of time.

Commissioner Barker.

COMMISSIONER BARKER: Thank you Chair Yang.

So I loved your testimony and I guess a thing that comes to my mind .. I've listened to all of you talk .. is that it's so easy, I think, for us to think of employers and employment as one monolithic simplistic model, and 50 years ago it was. I mean, when our parents looked for work, they had every expectation of finding a job and being able to keep that job for their life, and to retire with that job and to have retirement benefits, a pension. And my concern for the EEOC going forward is our work model now is so very different and so, you know, I'm thinking about the millennials and all of our measurements of how far we've gone and what we've done and, you know, we've .. more women have advanced here, more African Americans have advanced there, more Asians have advanced here or have not.

You know, but my fear is, that for millennials, their workplace is so very different that, you know, what do we do to really think beyond our measurement now? I mean, millennials now .. first of all, they get out of college and they have no expectation of getting a job. And if they get a job, it's likely going to be a job where they are a contractor, not an employer. It's like, I've got a job for two weeks, I've got a job for a month, but no expectation of, I've got employment, I've got a way to support myself and my future family for life. And the way they are hired, you know, is so very different. So what can we do?

Ms. Frye, you know, you've done so much study on the glass ceiling and opportunities. What can we do to help millennials in a way that they're going to .. you know, what tools are they going to need that our generation did not need? What can we do to help them?

MS. FRYE: Well, thank you for the question. I think you've identified a challenge that is an emerging challenge, but I think will become even a bigger challenge and you're absolutely right; the workplace has changed and the nature of work has changed.

And I think one of the things the Commission could do that would be enormously helpful for those workers, is really giving some sort of guidance on what are the tools that are available? Even if people are working from home, if they're part of a .. they're an employee, they're still covered by the law, but, you know, it may just manifest itself differently.

So I think having people understand that even if the workplace is different, their hours may be different, they may be, you know, work, you know, four days a week, or what have you; that they still are covered .. they have some basic protections.

I also think that the people who are contractors or maybe freelancers, or who are piecing together different bodies of work; may need some guidance on what they should ask for, what they should be looking for, what are the protections that are available and what's not available? Where are there gaps? Those sorts of questions are things that they may not be even thinking about when they accept different job opportunities or they're talking and negotiating about job opportunities.

So it's not a perfect solution because, in fact, the Commission may find itself in the place it has been before, which is, sometimes ahead of the law; but it is important for the Commission to begin to sort of set forth, here are the challenges, here's what the law can do, here's some guidance for folks who are now confronting these different types of work arrangements, but here are places where we may need more guidance and more law to make sure that people are treated fairly.

So I think it's a work in progress, but there is an important role for the EEOC to play.


And Chair Dominguez, do you have any thoughts on this?

MS. DOMINGUEZ: I certainly agree with everything that's been said. Again, EEOC is a mirror that reflects what's happening in the workplace. I really believe that feeding back the trends, the information through monographs of industry studies, coupling that with the multi generations in the workplace and the differences that they go .. the way they go about, you know, not only getting a job, but also staying in a job or moving to another job. Significant differences, and I think that type of research, coupled with whatever guidance you can provide, I think, would be very, very helpful.

I work with a lot of millennials and they're eager to get the next job and move on. And then, you know, the baby boomers are going, wait a minute, you haven't earned your stripes yet. So there's that tension in the workplace and I think anything you can do to provide those trends and that information would be very, very helpful.

COMMISSIONER BARKER: Thank you very much. I yield my time.

MR. GAY: May I add something? I'd recommend that you also give training and some input to the employers. It's important to work with the millennials, but also those running the companies have to understand the psychological and generational factors that those people are considering too, otherwise they can't properly manage them.

Examples, law firms, the concepts used to be that you weren't really a good lawyer if you weren't there at 11:00, 12 o'clock at night working constantly. Today, with the various technology, you can leave at 6:00, 7 o'clock, go home, have dinner with your family and go back to work without ever going to the office. Understanding that is very important to avoid perceptional issues.


MR. TOMASKOVIC-DEVEY: I'd also add, I think Commissioner Barker has raised an extraordinarily important issue, and it's one that both the academic community and the EEOC are really quite bad at, at this point, which is that we think about traditional firms and we're thinking in these static ways. And as an example, the EEOC still collects data on union hiring halls, which, in 1965, were an important broker between households and employers, and they no longer are. And the EEOC does not actively collect data on the various type of employment brokers, part.time consulting, contracting work, that really are very, very important, both for low wage workers and high wage workers at this point.

It means our ability to create that mirror to reflect the society is way out of step.


CHAIR YANG: Thank you very much.

Commissioner Feldblum.

COMMISSIONER FELDBLUM: Thank you. I'm particularly pleased that almost every one of you referenced the Strategic Enforcement Plan that the EEOC passed as a way of being proactive. And when I reflect on my five years on the Commission so far; one of the things I'm most proud of, is that the Commission did, 17 years after it adopted the first national enforcement plan; that it did issue a new strategic enforcement plan.

So both of my questions on this round and the next is going to deal with that and seeking your advice on that.

We certainly have heard through our select task force on harassment, meetings that trainings, requiring trainings, is not an effective remedy. So I certainly think we should take that into account when we think about what we put into our request for equitable relief.

My question is, do you think there should be a new strategic enforcement priority on finding and evaluating effective remedies? That is, a process priority as opposed to otherwise what we have as our substantive priorities? And in particular, whether you think .. and this is coming from your testimony .. whether you think it is worth looking at a remedy such as requiring a review of actual outcomes in diversity after a period of years, and accountability structures for managers who are not achieving some level of diversity that can be expected.

And two, requiring training that teaches managers how to provide critical feedback to everyone so we can see whether there is a disparity in terms of the assessment ultimately of people based on different protected characteristics.

I open to whoever wants to talk first and we have five minutes.. so,

MR. TOMASKOVIC-DEVEY: I'd like to address that. I think that it's a very good idea, and I don't know exactly what the answers would be. And so .. that .. in its early days, the EEOC did identify best practices; it often did this by reflecting what were the practices of what seemed to be the best companies, even though they hadn't been vetted, but those were the companies with commitment and so that made some sense. And that today you could do this; you could make this a strategic enforcement goal so that the EEOC could develop its own set of up-to-date data driven notions of what are the best practices.

I think again, Commissioner Barker was quite clear, we're not in the same place we were, in the 1960's where discrimination was taken for granted. Now it's more subtle and solutions are going to be organizational.

COMMISSIONER FELDBLUM: Right, and then I guess my question is not so much about whether we put forward best practices; because I don't think the research is completely there, and therefore whether the priority is to, in fact, research and evaluate certain practices. And so again, perhaps Mr. Gay and Chair Dominguez, whether you think .. what is it that you think could be evaluated well in a company?

MR. GAY: First, I think each situation, even if in the same company, could be different. I think it's going to be very careful. One thing I know among the management bar concern is that if the EEOC starts automatically saying you have to do this, every time, that is very much looked upon negatively. It's not viewed as productive and it could interfere with the ability of the two parties to reach a resolution that becomes productive.


MR. GAY: I think you've got to allow enough flexibility. Yes, you want to see a resolution. Yes, you want some kind of accountability to show that maybe in a year or two years there's a change or a productive change; but I think that's got to be worked as a cooperative effort not as .. I think .. as I listen to you, I'm trying to think of .. there's no definitive way I can say do XYZ and that's going to fix every situation.

COMMISSIONER FELDBLUM: So but .. so the question is, if you say, you need to create an accountability mechanism; you need to create training for managers to learn how to manage, does that itself create flexibility for different places because it'll be different accountability mechanisms and different training for different workplaces?

MR. GAY: Well, creating training might not be the issue. If training ..

COMMISSIONER FELDBLUM: No, I'm taking training out completely.

MR. GAY: I agree. But ..

COMMISSIONER FELDBLUM: Other than how to manage.

MR. GAY: But suggesting how to manage, that question is, how are you doing the training? I talked earlier about the concept of the canned training versus the conformed trainings that are very specialized, training 20 people versus 100 people at the same time. Using the online training, those are issues that could be affecting the situation. And I think that requires an interactive .. saying, we want you come with the results and here's the results that we would like to see done.

Looking for results is one thing, mandating it has to be done a certain way is what concerns me. And that's what I'm suggesting is not the productive recourse to take.

COMMISSIONER FELDBLUM: And so Cari, maybe in the last minute and a half, when I say not having training, what I mean is not having .. not mandating the training. Companies might want to do it and employees might want to do it. Not having training that says you have to train them what the law is, and you have to train them about sensitivity. But, you have to train about how you're going to do accountability; you're going to train about how to manage and provide critical feedback.

What do you think that would be like if an employer was faced with that in a conciliation conversation?

MS. DOMINGUEZ: Well, I think it could be a tool. I'm thinking of best practices and in terms what you're talking about, the way I translated it, is sort of a diversity scorecard, you know? A scorecard has qualitative and quantitative requirements.

The quantitative requirements are, you know, the hiring and did you hire from a diverse pool, did you promote from a .. those types of things.

The qualitative have to do with the training, sexual harassment prevention, are your policies up to date, are you hosting events in which you reaffirm? So, most employers are looking at that type of diversity scorecard or whatever you want to call it. I think that's sort of what you're talking about.

I'm a little sensitive. I have to put on my OFCCP hat from the old days, and I just want to make sure that, you know, when we talk about the goals and the types of things for diversity outcomes; that we don't run afoul because all of these things are coming to the employer from different angles and we have to coordinate and make sure that it is a consistent pattern toward our desirable outcome.

CHAIRMAN FELDBLUM: Thank you. I'm at six seconds.

CHAIR YANG: Thank you.

Commissioner Lipnic.

COMMISSIONER LIPNIC: Thank you Madam Chair.

I want to .. Dr. Barocas, I want to ask you a question related to your testimony about big data, and I was really interested and happy to have you on this panel, because I have been both curious and deeply concerned for a while about how do people get jobs today, in the era of big data?

So, let me share with you an example of a friend of mine who's undergoing a job search and I want to get your thoughts on this both from a discrimination standpoint, and then even more broadly, in the era of big data. And then actually, Mr. Gay and Chair Dominguez, I'd be interested in your thoughts on this.

So, a friend of mine who is an extremely qualified attorney, applies for a job, online, for a position which he is enormously qualified for, right? Seems to match all of the qualifications; within 20 minutes after applying, receives a rejection back. So, I'm just .. I'm interested in your thoughts on that, and again, both from a discrimination standpoint; but really I'm very interested in how do people get jobs today and in that environment, what are your thoughts on that?

DR. BAROCAS: Thanks very much for the question.

So, my first answer will be that we need to, I think, be cautious about imputing some cause to some observed outcome. So, it's still, I think, entirely possible that this person was not selected by a person. In general, one of the serious challenges here, actually ..

COMMISSIONER LIPNIC: Let me add a fact to it, and this is true…


COMMISSIONER LIPNIC: applies at midnight to a position, and within 20 minutes, gets the rejection back.

DR. BAROCAS: Knowing how late my law friends work .. no, so the point I'm trying to make though, is that one of the actual challenges here, is that we often don't know what the process is; and that itself actually is a serious concern, and it is precisely because some of these things are so opaque; that they actually, I think, warrant more attention on the part of regulators.

And so, if I were subject to that outcome, I would be, you know, both like upset, but also frustrated because I would have no sense of how it was rendered.

Speculating entirely, I can imagine that yes, there must be some formal procedure in place that automates the significant amount of the selection process. And I imagine that the .. that your friend's submission involved more than just a resume, but perhaps they actually have also figured out a way to automate the process of reviewing resumes.

But I think, yeah, I think now, the situation that people probably find themselves in, especially for jobs which receive many applicants, which at this point is probably most jobs; is that there is a fair amount of automation going on, and that automation can take the form of having structured input to the process, so I have to fill out a relatively exhaustive form. But increasingly, it can actually make sense of unstructured data, meaning, it can actually read resumes; it can find within narrative text, something that seems to be indicative of some, you know, promising quality. And increasingly, companies have figured out that there are many subtle indicators like, what browser you happen to use; which also ends up being predictive of some kind of job performance which in some way is not even information that the employee realizes .. the applicant realizes that they're submitting.

So, it's quite remarkable, all of the different signals that have been developed, have been recognized. And I think the main challenge here is to really figure out what degree of transparency there should be for the applicant.

COMMISSIONER LIPNIC: Mr. Gay and Chair Dominguez, I'm interested in your thoughts, and Mr. Gay, in terms of clients that you advise and their use of big data in their hiring processes and ..

MR. GAY: Thank you. I don't know if I have an easy answer to this one. The fact scenario you gave, the one which raised a whole lot of questions in my mind and if my client called me and told me that that had happened, I'd say, let's sit down and talk about this.

How did you get one 20 minutes out? I mean, yes, this kind of sounds like when we were young and we watched those movies about the year 2000 advanced and science fiction and, you know, the big machines taking over the world. But, it is concerning, and I don't know if I have an easy answer. And I think that while computers are able to diagnose several things, the concerns of whether or not illegal consideration is taking place is very important.

When I mentioned earlier about the idea of creating joint task forces when you have an harassment to analyze and look at this, this is an issue I think would be an excellent issue for the EEOC to create one of those task force sociologists like, professionals of different skills and really analyze it.

I don't think there's an easy answer in this question.

COMMISSIONER LIPNIC: And let me ask, actually, both you, in your experience with clients and then Chair Dominguez.

So, do you have clients who come to you and say, you know, we hire 100 people a year, and we get 50,000, 100,000 resumes. Our application process is all automated. How can you help us? What do you advise us on employing the types of techniques that Dr. Barocas was talking about?

MR. GAY: Well, to be honest, in my situation, they typically come to me and say, usually when we've gotten in trouble. They don't usually call me to say develop the technology.

COMMISSIONER LIPNIC: That would be the first ..

MR. GAY: Exactly. So Cari, do you have anything on that?

MS. DOMINGUEZ: Yeah. I mean, the challenge is that, you know, you've got LinkedIn, Facebook, you've got these multiple avenues from which people are applying. So you have one position and you could have 3,000 applicants, you know, on the .. At Loma Linda, its 14,000 employees and we get over 100,000 applicants a year. I mean, it's just .. the volume is - so, some of these software services, what they do is they look for a particular type of experience, or a particular type of background working with the HR organization. And so, you know, that is a slippery slope. And then trying to put together the applicant pool from which you're selecting. I mean, it's .. it just becomes a mammoth project.

So, again, I know I sound like a broken record, but I do think monitoring and looking at our pool of candidates to make sure that we have an inclusive process is key. But it's not .. there's no like, the points that's been expressed, there's no easy answer to that.

COMMISSIONER LIPNIC: And just to comment and .. for everyone to think about, and for us to think about; part of the concern I have is that some of these programs that are being used are really about having a big applicant pool, but again, to your point about there's something about, you know, it's so opaque that we don't really know what's going on, and I will note for the record that apparently we now know that one criteria is, whatever type of program that you may be using or whether you're using Internet Explorer or something else to apply for the job, so a note to all those who are applying for jobs.

CHAIR YANG: Thank you.

Commissioner Burrows.

COMMISSIONER BURROWS: Yes, wow. I could listen to all of you all day, but I know I only have seven minutes so I don't want anyone to get worried, especially the Chair.

I was very interested and I guess disturbed in particular about the really fascinating analyses that Dr. Edwards and Dr. Tomaskovic.Devey have presented and so I thank you for that. I found your testimony and also your book, Documenting Desegregation extremely helpful in describing the big picture of American workplaces since passage of the Civil Rights Act. And they paint an interesting but somewhat troubling picture because it seems as the country is getting more diverse, as the workforce is getting more diverse; we're seeing, you know, resegregation if you will. And I know that, you know, if I understand this correctly; it looks like the bulk of the progress for African Americans ended about 30 to 35 years ago and has sort of stalled. And so that is a very important message that we have to take seriously.

I think that there are a lot of things that I have questions about. I know the book which goes obviously in more depth than the testimony, ended in about 2005 and I'm particularly interested in the period from 2005 up until today because we had an economic downturn; we saw a lot of tricky issues that suggest to me that there may have been an increase in discrimination even then.

So I'd be really interested in hearing from both of you about, you know, sort of what the overall trajectory seems to be now and what areas you think are particularly rich for us to continue researching because there's a general picture and if you go deeper and if you look at what's happening to subgroups, what's happening with Hispanics, what's happening with women of color, you start to get another kind of picture. And so I really think that it may be useful for us to know a little bit more in depth.

So, if there are suggestions about areas where we should .. I know some of this is in your testimony so I would pose that question both to .. to both of you, Dr. Edwards and Dr. Tomaskovic.Devey. Thank you.

DR. EDWARDS: One of the things that we observe often in looking at the data and the employment data is that there is a plateauing of effect. So there were some sharp increases and then there were some plateauing for different groups and for different .. in different job groups.

And I actually think that Don has done a lot of work to try to explain that and put it into more of a historical context. So like I say, I'm going to pass it right back to him.


So thank you very much. Those were very kind words. And academics often write things that nobody ever reads much less get on a TV monitor. Hi, mom.

And so I think we're all interested in what's happening now and that does require us, I think, to do more research. I think that the EEO.1 data is very useful in that regard and my sense is that the EEOC has a couple of leadership roles to play here and one has to do with mobilizing the research community.

One of my recommendations is that the EEOC start issuing requests for research. This doesn't mean you're a major granting agency; but it means that you signal to the academic community, what was the kind of research you'd like? What are the kind of research questions you'd like to see answered?

There's a lot of us out here and you'd .. the EEOC didn't pay me any money to do this big book using your data. I did it because it was .. it's my job. And so I think that that's strategically, if you have questions you want answered, you should ask them.

We have a group of researchers now that are relatively closely affiliated with the EEOC through the Intergovernmental Personnel Act appointments that happened through ORIP. We've had a couple of national conferences here in this room though it looks much nicer today. And I think you can mobilize people to help you answer questions like that.

I think the other thing is, in terms of systemic enforcement, you can be asking these kinds of questions about where are the efficiencies in how the EEOC is using its resources. And in some ways those are the harder questions. These are the managerial questions about are our current practices achieving our goals, right?

And so the next time you go to OMB and say you need more money, and OMB says, well, things are flat lining; it would be good to have a sense of where the strategic place is to go.

And those are research questions. These are data questions. And they'll support the legal function. They probably won't replace it, but they certainly will support it. Thank you.

COMMISSIONER BURROWS: Thank you. And I noticed as well and I found this fascinating, some of the observations about .. and it really dovetails with what we're hearing from others on the panel as well, that, we can be most effective when we use our tools collectively and sort of, you know, in a way that is specific and tailored to the particular industries and workplaces.

So, one of the things that I thought was interesting is in the trajectories where there was progress, you looked particularly at African Americans and at women; there was a collective of things not just the good folks in the general counsel's office bringing their litigation; but for picking industries where there was a need and targeting that and at the same time creating a conversation and an environment, I think is the word that you used, that made it clear from different areas that employers needed to be taking particular issues seriously.

And so, I'm really fascinated by the idea of all the tools that the EEOC has to work together and so, you know, I realize my time is up, but I think that may be one area where we should be looking, is how to bring all of those tools together to look at some of the cultural issues that we've heard from Mr. Gay and from Chair Dominguez and how to sort of get the various pressure points so that you have a partnership with employers as well as in a targeted way, not just litigation, not just one tool in a toolbox, but all of them kind of working together.

So I thank you.

CHAIR YANG: Thank you all for that excellent testimony. Before we start our second round we will take a quick ten minute break and we will reconvene at about 11:30. Thank you so much. (Short recess.)

CHAIR YANG: Welcome back. We will now begin our second round of questions.

I wanted to explore a topic that we heard some from Professor Godsil about and I know we lost her; but it addresses issues of stereotyping, implicit bias, assumptions that still exist about who's most qualified for a job. And I know many of you mentioned it in your testimony.

We heard from Ms. Frye about stereotypes about women as caregivers and how that may affect job opportunities. We heard from Chair Dominguez about stereotypes about older workers and what jobs they may be qualified for. And we've also heard from Dr.  Barocas about the kinds of bias that may enter the process in identifying who is the best performers in a workplace and the sort of inputs that go into the data. And I know that Mr. Gay also talked about the role of implicit bias and addressing equality today.

So I wanted to take a moment to ask you all about what you think is working to address these issues. I think the research is clear that these kinds of biases enter decision making processes and affect workplace equality.

We've talked some about training and what kinds of training work. I did .. I spoke at a conference where there was an interesting workshop where HR executives who were aware of these issues participated in the review of a resume that had a different name, but the same exact work experience to suggest different backgrounds and they rated the person wildly different based on the characteristics. And they found that was valuable going through that exercise themselves.

So I'm wondering, what kinds of procedures, oversight, monitoring, as well as training, can be helpful in addressing some of these issues today? And I would be happy to start with whoever would like to start. Professor, would you like --

DR. TOMASKOVIC.DEVEY: So the .. I'll say a little bit about the literature which is that diversity training, on average across studies, has no effect. It has .. it tends to have .. in some studies where it has a positive effect, it does for white women and it's negative for minorities.

When it has more legal content, it's more negative. That is, when it's seen by managers as something to change their bad behavior or control them, all right? So this is pretty damming in my mind.

Now, on the other hand, let's pretend you're a manager and your problem is productivity, all right? And you've got some productive workers, some workers and some lazy workers. You actually probably don't try to reengineer the personalities of those workers. You create accountability structures; you create routine business practices that says, okay, we're all going to get this work done in this way.

And so, involving managers in solving this problem, seems to be the most important route, rather than to try to change the internal cognitive structures of the managers. And so I think that this is .. what Chair Dominguez was talking about in terms of accountability structures.

To me, these seem involving the managers and getting this work done and having them accountable is exactly how most firms solve the productivity problem.

CHAIR YANG: Thank you.

And Ms. Frye?

MS. FRYE: I certainly understand the point that the Professor was making about training and sort of what is effective training.

I think I would step back a little bit and start with basic understanding about what's happening in the workplace today. I think that oftentime people have the view that, you know, we've progressed so far so that these issues don't exist; but your data sort of makes clear that these issues do exist. And so one important piece is just making clear that sex discrimination, race discrimination, all of these issues still have an impact; that stereotypes still exist; that implicit biases actually do affect how we think about people and hiring decisions; .. even just understanding that those issues and challenges are relevant and still in place in the workplace, is an important thing to articulate that, I think, often doesn't get articulated.

And it may be that you need to have accountability measures in the workplace that sort of hold people accountable for, you know, what your work force looks like, how many people get promoted. Setting those measures, you know, having people measured by either their progress in diversity, setting those measures at the board level and saying that these are things we measure in terms of promotions and things like that.

I think those things are effective, but I think it's important to say that these biases exist, and while you can't change personal behavior overnight; the changes have been mostly because of change in the culture of the workplace. And so it's not just about the law and the implementation of the law; but you have to acknowledge that you need to actually change the culture: that work looks different, the way people work looks different, and that we have to be aware that those changes have to be valued and measured.

CHAIR YANG: Thank you.

And Dr. Barocas.

DR. BAROCAS: Thanks for the question.

Today I think I've urged caution around big data, but at the same time I want to point out that specifically for dealing with cases of implicit bias, data driven decision making can be a significant improvement even if it's not perfect.

And so the fact that it's imperfect should not be a reason to avoid the tool especially in cases where we know they are to be extremely high rates of implicit bias. So, you know, black men face an extraordinarily high degree of implicit bias in certain hiring and these tools would, I think, for whatever imperfections they may have, significantly improve situations in those cases.

At the same time, the reason for that is that it often formalizes the hiring and promotion, salary decision in some way. It forces the decision makers to actually be explicit about what matters. And it may be that they formalize it in a way that we don't like or that that formalization has an otherwise avoidable disparate impact.

However, the fact that it's formalized is actually an important opportunity in that it actually compels people to say explicitly what they care about, what the decision will hinge on, and we can use that as an opportunity to kind of investigate what the employer has decided actually really should decide some outcome.

And so, to the degree we can encourage employers to be creative and thoughtful and see this as a moment of useful reflection; I think that also is an area of potential progress.

CHAIR YANG: Thank you very much. I am out of time.

Commissioner Barker.

COMMISSIONER BARKER: Well, I'm sort of perplexed because you went into exactly what I was so anxious to talk about.

CHAIR YANG: Good, because I'm out of time.

COMMISSIONER BARKER: Well, you know, I guess a thing that I keep thinking about and Dr. Tomaskovic.Devey, I love all .. you know, you've raised so many interesting points for us to think about. But, one of the things that I'm concerned about from your testimony, is your discovery that so much of our approach, in our best practices area is .. you found to be really not effective. In other words, you know, the short drift that I get from what your testimony is, that, in 2015 and beyond, you know, it's time for the EEOC to look at whether or not we should be telling employers: you need to do training; you need to train all of your managers; you need to, you know, train from .. you know, blah, blah, blah, blah; you need to train regularly, blah, blah, blah, because that was new to employers in 1964; it is not new to employers now, you know? Even small employers know they have to provide training. The question is whether that training that they're providing is actually effective.

So I guess, you know, what the questions that your testimony particularly raises to me is, is it time for the EEOC to look back at our best practices and look at them one by one and say, are we taking the right approach at this time or, you know, is the approach we've been taking best practices, you know? Even though we constructed it as a best practice, is it really too dictatorial for 2015? And is it .. maybe does it .. is it even condescending? Does it presume that employers, you know, are so stupid that they don't know they need to provide training? Maybe it's time for us to take a different approach. I'd like to hear any of your thoughts on that.

Chair Dominguez, what do you think, you were intimately involved in developing best practices?

CHAIR DOMINGUEZ: Yes, thank you for the question.

You know, I have experienced many, many times when an employer follows the regulation and says you have to do this, this, this and that. They do it for ten, 15 years and the outcome hasn't changed at all, because it's not part of the culture; it's not part of the organizational culture. And so the question really becomes, how can you provide sort of broad based guidance in terms of best practices while ensuring there's flexibility in assimilating that, those expectations into the specific organizational cultures that we're addressing?

And so, I am not a strong supporter of just saying to employers, you have to do this, this, this, and that because, in a way; it buys some wiggle room in terms of, well, I did all of this that you told me to do, and nothing has come out of it because they're not using the cultural expectations, the values and the guiding beliefs. And I said before, I think the CEO really has a huge role to play. I worked with a client very briefly that had been in compliance in another agency for many, many years, but there had been no progress in diversity at all until the CEO said I am going to be the chief diversity officer now. All of a sudden, things changed dramatically in a matter of a couple of years. So I do see your point and I support it.

COMMISSIONER BARKER: And I'm brought back to Mr. Gay's testimony in talking about partnerships, because maybe one of the things we gain from this meeting is sort of a shift in our thinking; in thinking more toward working with employers to encourage them to develop their own culture of diversity rather than us telling us, you know, what that culture should look like.

Mr. Gay, do you have any thoughts on that?

MR. GAY: I would, you know, I don't want to sound like a broken record, but I would encourage you to do a collective effort. And while you might not want to tell them what the effort is; it's productive to have examples and ideas, because some companies might not appreciate things and agree. You get different companies together. And you get you guys together and you share thoughts and considerations. You learn from each other. And ideas might come up that never developed. I mean, the issue of the partners in the law firm looking at the associate differently. And if I recall that case, that involved not just white partners, but black partners and Hispanic partners and both. Not only did the white partners view the black associate poorly, so did the black partners, differently.

So it's .. I think with implicit bias particularly, it's necessary for people to even be brought to their attention the awareness that this is an issue. And until they do that, maybe the EEOC can do more about bringing examples, issues like this that should be considered and thought about.

I'll give you an example. As a black male, a lot of times, people were upset by the fact that I defended companies. How can you do that?

I know one particular friend of mine who had that problem, and he tried to work with the Plaintiff's lawyer and never could get a response from Plaintiff's lawyer. The Plaintiff's lawyer finally revealed to him one day, the reason I don't like you is, as a black man, how can you defend companies? Well, that's biased there. You're pigeonholing a person.

So if the EEOC would develop a whole cadre of ideas and examples of where bias could exist, that would be helpful.

COMMISSIONER BARKER: And I think too .. and Dr. Tomaskovic.Devey, I'd like to hear from you on this.

I think we are more and more in a culture where companies are developing their own cultures. Is that a key to diversity in the future? What are your thoughts?

DR. TOMASKOVIC.DEVEY: Well, I think because the solutions are going to be inside the companies that whatever the practices are; have to be created within whatever that set of social relationships are, technical relationships, production goals in the company. That doesn't mean we have to leave them alone. And I think the idea in the systemic kind of .. the ideas around systemic enforcement suggests okay, there might be some companies that are particularly egregious and need interventions.

I think the flip side, which would be the more radical innovation, is that there are some companies that are doing really good jobs and the EEOC could come knocking on their door. Now, if the EEOC is knocking on someone's door, it probably is not good news. And you could use your charge data to tell the large companies, hey, you're the set of companies that have very few discrimination charges, right? And then you could knock on the doors for the other ones, the ones with a lot. And you could do the same with the EEO.1 and EEO.4 data for a firm saying, hey, you're the firms that are doing a really good job in this industry, right? And saying that out loud also allows the other firms that are doing a bad job to know that you can identify them as well.

COMMISSIONER BARKER: My time is up, but I think that's an excellent idea. Thank you, sir.

CHAIR YANG: Thank you.

Commissioner Feldblum.


Well, I'm very glad that a lot of this discussion has focused on research and data. A number of us have been spending a lot of time on the multiyear research and data plan that was called for in our strategic enforcement plan. And I specifically want to acknowledge both Ron Edwards and Don for the work you've done so far. I'm looking forward to the Commission voting on that plan and getting it out.

I'm hoping people will be pleasantly surprised to see how many of these issues we're actually addressing, and also some of the sophistication we've already gotten in terms of training. You know, we're aware of Frank Dobbin's work about how the training doesn't work. We've also been engaging with other academics who have moved it past and we've learned stuff about things that do work.

But I want to move now to the second part of the Strategic Enforcement Plan where we picked certain priority areas to focus on. The idea of the Strategic Enforcement Plan was number one, if a charge comes in and it seems to be a blatant problem, you know, sort of hits you in the face; that is considered to be a priority charge regardless of what issue it raises.

But, let's also, we decided, set up certain priorities we would focus on, even if it doesn't hit you in the face right when it comes, in order to be proactive. And again, the idea there, is not to pick too many. This is creating an HOV line for certain charges. You put too much in the HOV line, it's not HOV.

So this is particularly to you, Ms. Frye, on the strategic enforcement priorities we currently have, this is the year that we need to review it and issue a new one for 2016 to 2020. Are there areas that you think we need to target more? And in particular, I'm interested in your thoughts on our pay equity priority.

MS FRYE: Well, thank you for the question.

You know, as I said in my testimony, I think equal pay and closing the wage gap is an enormous priority primarily because of the role that women are playing in the workforce increasingly and increasingly as bread winners for their families.

You know, I think as a threshold matter, it's important to acknowledge that the EEOC is one of many actors that have to engage on the wage gap. You know, everything that we know about the wage gap is that it is due to a variety of factors and only a portion of that gap, you know, some people attribute to discrimination and a portion is to other sorts of factors. So there are limits to what EEOC can do just in terms of your enforcement capacity and jurisdiction, but certainly on the issue of discrimination, there's work that the Agency can do and has already undertaken.

I think equal pay is an important priority. I would start by focusing in a couple of ways. First is, I'd focus on low wage workers. Those are the folks who are stuck. They're disproportionately women of color. Those are the jobs that often have the most problems, the fewest benefits. I'd look at the data to see whether or not they are industries or occupations that have the widest gaps.

I'd also look explicitly at women of color and even some of the emerging areas there's some research that's come out in the last year and a half around LGBT workers and showing pay gaps there. So I'd try to hone in on, are there particular populations that seem to be experiencing a particularly large pay gap? And then use the authority that you have either looking through Commissioners' charges, or, you know, looking at the charges that you do get in to see if there are trends that emerge, or other issues that may be going on that suggest, you know, this is a particular problem in this particular area.

I'd also think about interagency collaboration. Others mentioned the Department of Labor; the Department of Labor obviously OFCCP does compliance reviews. This has been a priority there. There may be a way .. I know EEOC and OFCCP have an MOU; there may be a way to work together in this space, again, to hone in on particular areas and work more closely to look at particular industries. That's where I'd start.

The other .. the last thing that I would say about it is that I'd also think a little bit about entry level workers. If you .. one thing we know about the pay gap is that that's often where it starts. And there may be a way to work with folks going in at entry level to say, here's a checklist of things that you should be asking. You know, there are questions about whether or not there's differences in negotiation techniques and things like that. But I think getting people on the right footing from the start and saying these are the questions you should ask, these are the expectations, might be a way, at least, of dealing with folks at the very entry level in a way that is a little harder to grasp once people get higher up the food chain.

So I'd start there as a place to focus to at least give some guide posts and then see what the information provides.

COMMISSIONER FELDBLUM: Great. And I have to say, I hadn't actually heard the sticky floor. Obviously glass ceiling, but sticky floor I think really reflects the gender job segregation that exists in terms of occupations. We've certainly done some of that in our litigation, but, I think there can definitely be more.

In the short remaining time, I am interested in the folks who counsel employers. You may not like that we have something in a strategic priority, but, if you .. again, we're reviewing it. I think specifically we need to narrow, target some. So it's not so broad.

Do you have a sense of issues that you think employers think, yeah, actually, you should focus on this? And again, part of the focus is, engagement in education; engagement, not just litigation. That was an intent also, the priorities.

MR. GAY: Well, I don't think .. my honest opinion of the companies is that they necessarily don't like the fact that EEOC is looking at issues and analyzing it. I think the concern is that you're looking at it as respective of the companies and the bad guys and how can we attack them on these issues. That's where I think the concern is.

I mean, I think, if you look at your website, you lay out the concepts of, you know, fast tracking cases are great; conciliating cases are not. Well, why am I conciliating the cases and there's no merit to it?

And I know I've gotten calls from your Agency talking about, we'd like conciliate a case. What's it about? I don't know. Well, why are you calling me?

So I mean, I think the Agency has to, as I said earlier, create the neutrality role. If you clearly demonstrate that you're in a capacity to be a partner with companies helping to identify the issues, helping to figure out how to address the issues, I think you'll have more companies willing to embrace working with you.

COMMISSIONER FELDBLUM: So just in my last six seconds, I will certainly say it. I think we're only conciliating cases in which we found reasonable cause. However, that can be a subject for .. a topic for a further conversation.

MR. GAY: Okay. Good.


CHAIR YANG: Thank you, Commissioner Feldblum.

Commissioner Lipnic.

COMMISSIONER LIPNIC: Thank you Madam Chair.

Dr. Barocas, just going back to my earlier question and related to big data. Just quickly, in your experience with those who study and work in the world of big data in hiring, would you say that there is implicit bias on the part of those who have faith in big data that they can overcome potential discrimination in hiring?

DR. BAROCAS: So much of my work has been motivated by desire to push back against the belief that simply because a decision is data driven, that it's somehow objective or neutral. And so I do think that people who are the clients of the companies developing these tools, tend to have that perspective.

Practitioners themselves, the people developing these tools, actually tend to be more circumspect for reasons having to do with being taught to kind of question the validity of their models generally. And so it's just by virtue of being trained to be skeptical that they're also like, there's benefit of also like, maybe being attentive to how their models might fall down in ways that could have discriminatory effects.

But, I still think that because the tools are marketed often as a way to overcome things like implicit bias; there's a false impression of neutrality or objectivity.

COMMISSIONER LIPNIC: So I .. well, I was going to make some crack about algorithms, but I'll pass on that.

I have a question, Jocelyn, for you and for Professor. And this is related to the labor force participation rate of women, and which I know is something that you have looked at closely.

So my question is, in Mr. Edwards' testimony, and we all know the phenomenal increase in the labor force participation rate of women from 1964 until current day; but, over the past few years the labor force participation rate of women has actually declined by a few percentage points, since I think it peaked probably in about 1999. And I'm interested in, Jocelyn, from your work on this, your thoughts along those lines and then from a sociologist perspective, comments on that.

And I'm interested in sort of going forward in the next 50 years, the reasons for that and what we can do to address it. Or should we be concerned about it, I guess. There's even that aspect.

MS. FRYE: Well, I think there are a couple of things going on around women's labor force participation in particular. And it really stems from a couple of factors and I do think there's some racial and ethnic differences there, but I think one of the dynamics is simply the responsibilities that women disproportionately have in their families. And, you know, there's a lot of research that shows that women tend to work fewer hours; they tend to have more caregiving responsibilities and particularly in an environment coming out of a more difficult economic climate when folks are working with employers where they don't have access to certain sorts of workplace protections or workplace policies like paid leave or their childcare is unaffordable; somebody's got to take off to do those sorts of things. And what we see increasingly is that women often are the ones who are doing that and their families.

And at the lower income scale, low income work force; there are lots of folks who are simply in jobs that don't afford the types of protections that allow them to stay in that job over the long haul. You know, child care falls through, somebody got to do it, so they lose the job because they don't have any alternative, they don't have paid leave; somebody gets sick, somebody has to do it.

So you see both a reality that women are disproportionately taking on these responsibilities in their families and that affects their workforce participation.

And so one of the things that we work on, this is not necessarily EEOC's responsibility; is in trying to promote sort of stronger work family policies so that women .. it actually has the effect of leveling the playing field for both women and men. And there's certainly companies that have talked about that; that when they had stronger work family policies, they actually improved their retention of women and they closed the gender gap in their retention.

So I think there's lot of things going on. It is a concern in the sense that women increasingly are bearing enormous economic responsibility for their families. Two.thirds of women are bread winners. That means they're either co-, sole or primary bread winners for their families and so they need access to jobs that are sustainable and will support their families. So it's a concern, but I think there are lots of things that are going on.


DR. TOMASKOVIC.DEVEY: Yeah, I think this is .. leads to thinking about cooperation across federal agencies and that a lot of the highly educated women at very high levels of labor force participation even after they become mothers because they can provide .. they can buy services in terms of child care and other household services. And at the low end, at lower scaled jobs, we've had wage stagnation for 30 years in this country and then we're not very good as a society at providing childcare as a citizenship issue as opposed to a family issue. And this is a real burden on women in lower income households and for single mothers and so these are real disincentives.

Now, these are not discrimination problems in the way we think about them here; but, it is the case that we continue to have higher levels of gender segregation in these lower skilled jobs and that the male jobs pay better. That's an EEOC issue.

Thank you.

COMMISSIONER LIPNIC: And Chair Dominguez, did you have any thoughts along these lines in terms of the participation rate, the declining; it's probably leveled off a little bit, but it has declined since the end of the 1990's about the labor force participation rate of women?

MS. DOMINGUEZ: Yeah, which I find kind of perplexing because I work in a university setting and over 60 percent of the graduates are women. So women are graduating at a higher rate, getting college educations at a much higher rate than men.

COMMISSIONER LIPNIC: And that is also the case for graduate degrees.

MS. DOMINGUEZ: That's also the case.

COMMISSIONER LIPNIC: Women earn more than half of all of the graduate degrees today.

MS. DOMINGUEZ: Right, right. And so I suppose the question becomes some of the things that Jocelyn has indicated: whether, in fact, because we've got this very diverse workplace right now, where women have a lot more flexibility; we have consultants who never come to the workplace; they work from their homes, and so it's rather a distributive workforce that oftentimes is hard to capture in these EEO.1 reports, and that type of thing.

So, I'm not 100 percent certain of exactly .. I mean, I know that there are family considerations and those types of things; but I'm not 100 percent comfortable with saying, we're declining, because I don't know that we have been .. we have the mechanisms to capture everything that I believe .. I mean, I work with individuals who get paid very nicely for two days-worth of work, women. But they have their own independent environment.

So, it's something that I think we should probably take a look at in terms of how to capture that information to make it reflect more accuracy.


COMMISSIONER BURROWS: So I wanted to follow up on the question with respect to women in the workforce and particularly on paid asperities and I noticed Jocelyn Frye, you had in your testimony some recommendations about collecting more data and reporting more data, perhaps along those lines. And I was curious as to what sorts of issues you think would be useful for us to report out that would sort of advance the ball in this area?

MS. FRYE: Well, on equal pay and really other issues as well, I think that it's useful to report out on where you see the industries with the largest pay gaps, occupations with the largest pay gaps broken down by race and ethnicity in particular. I mean, the interesting thing about your data is so rich with information, but there's so much that you don't necessarily see from just the charge data and one of the things that the .. a couple of opportunities that folks have been so kind to share data and we've looked at it.

There have been stories that have been told with your pregnancy discrimination charge data that the increase was driven largely by women of color; retaliation charges that were largely disproportionately being filed by women. That information, unless you sort of dig deep and actually sort of look closely at it broken down by race and ethnicity and gender; you're just not going to get that rich information. And I think it's useful to the earlier point about academics doing research. I think if that information is out there, it will prompt other people to look at those questions so it's not solely on the Agency to explore it as well.

So I think all of that information would be enormously useful, you know, both in terms of just understanding what's happening in the workplace, but also hopefully guiding and targeting your own enforcement efforts given limited resources.

COMMISSIONER BURROWS: Thank you. And I hope that we'll be able to continue this dialogue particularly with the academics here and maybe sort of move the ball forward.

I wanted to follow up on some of the discussion that we had with respect to the big data issues. It's a real interest of mine and I'm reminded of the observation in The White House; the report from May 2014 that a significant finding of the report, say the senior advisors to the president, is that big data analytics have, and I quote, "have the potential to eclipse long standing civil rights protections in how personal information is used." And they single out a number of areas including employment. And I think that your testimony is very helpful in having us think about that.

One thing we learned from the experience of testing developed in the area of police and fire and other areas is that there were products that, you know, were not appropriately designed for the jobs. And then there was a series of trying to recollect that. And rather than have this new kind of product perhaps go in one way or the other; I think it would be useful for us to think about ways that we can encourage at the front end, research into what would make a better design, because I can see that on the one hand it would be extremely useful if you got thousands of applicants that, hey, while you sleep at midnight, I think Commissioner Lipnic pointed out, in 20 minutes they can call through and give you an answer.

At the same time, I think I'm going to go out on a limb here, but I doubt that a court would find which browser you used to be job related and consistent with business necessity for very many positions.

So I think we, you know, there has to be a way to be smart enough to think ourselves out of that box and so I'm wondering if you have suggestions about things that we can do to encourage that kind of research on the front end?

I don't know if there's oversampling. You mentioned sometimes people are underrepresented sort of the way they do at polling that could help with those, but I'd really be interested in your thoughts on that.

DR. BAROCAS: Thanks very much. You're right, there are, indeed, tools available and computer scientists; there's a small community of computer scientists who are interested in these issues and they would benefit enormously from the input of the Agency as well as employers.

I think, generally speaking, they lack for expertise in the administration of discrimination law itself. But they also would be .. they would also find it extremely helpful to work with real world data. So to the degree to which the Agency can help broker relationships with employers who would want to help develop these tools with these concerns in mind, I think there are real opportunities.

Some of those things include trying to overcome some problems with the historical evidence that is used as this evidence base. But there are also increasingly even more sophisticated tools which try to help people reason formally about this problem where sometimes the thing that is legitimately, statistically relevant to some decision, also happens to be highly correlated with class membership.

And the courts and lawyers have thought about this for ages, but it's interesting to see how the computer science community has approached it. And I know that they would benefit from additional legal expertise, but it's also in my opinion, that lawyers and those administrating the law, would benefit from some of the ways that the computer science community as begun to think about it in part because it allows you to really figure out how to handle this apparent tradeoff between, you know, pulling out data which actually is relevant, but also is telling you something you don't .. you're not supposed to be considering.

And so, my suggestion would be, engage with the computer science community; help foster more productive relationships with employers, not as adversaries, but as clients who would probably benefit from these tools.

And the very final thing I'll say is that, there just happens to be a low awareness both of the fact that there are potential problems here, and that there are solutions, at least a number of them, already in development.

And, I imagine that many employers who have already turned to these tools would be likewise motivated to consider some of these problems because they've already probably turned to them for reasons of reducing implicit bias and other things.

So I think however, there are a limited number of cases which I can talk about with you in private where there will probably need to be additional effort, but the tools themselves are not enough. And so as much as I want to advocate in favor of these things; it's also important to recognize that additional mechanisms are necessary and we should think about when they need to be in place to support what the technology can do.

COMMISSIONER BURROWS: Thank you. That's very helpful and I think it's also important to remember that because something correlates doesn't mean its causal, right? So you can have these things that are in the real issue that's making someone a good or not a good employer is something completely different. And so I think as these develop, getting in on the front end and really helping to push it in a direction that's more productive before they're used with a lot of disparate impact, would be enormously valuable, so thank you.

CHAIR YANG: Thank you. I share in Commissioner Burrows' sentiment that I could talk with you all afternoon about these very interesting topics, but unfortunately, our meeting must come to a close, but we do hope that this is just the beginning of a broader conversation that we started today.

I would like to offer each Commissioner the opportunity to make a closing statement. We'll each have about three minutes and I will start with Commissioner Barker.

COMMISSIONER BARKER: Well again, I'll be brief. I just would like to take this opportunity to thank each of you for taking the time to come down here and hope I get the chance to meet you and talk to you briefly when the meeting is over with. But thank you again.

CHAIR YANG: Thank you.

Commissioner Feldblum.


Well, I also want to convey my thanks to all of you. I'm thrilled to have a Former Chair here to provide your insights. And I do hope that we'll be able to draw anew as well as others since the record will stay open, on things that we should think about as we evaluate and revise our strategic enforcement plan for 2012 to 2016.

I mean, perhaps because I spent so many hours on the first one, I think we're seeing some of the ways in which it's been positive. I think now we can see some of the ways in which it needs to be modified. That's what's called evaluation.

And I really appreciate that, specifically, as we celebrate the 50th birthday of the EEOC, I'm particularly thrilled that we'll be working on a 2012 to 2016 strategic enforcement plan. Thanks so much.

CHAIR YANG: Thank you.

Commissioner Lipnic.

COMMISSIONER LIPNIC: Thank you Madam Chair. And again, thank you to all of our witnesses for your time and your incredibly insightful and valuable testimony.

As we go forward in the next 50 years, the one thing that I think about often is that what our title is, which is: the Equal Employment Opportunity Commission. And while it is certainly the case that in the enforcement of our laws, we are always about remedying past discrimination; what I am often mindful of is that we must be about what our title is: equal employment opportunity.

And so I certainly hope with your testimony today and your insights and those of others that that can be the focus, in particular, of the Commission's work going forward. So thank you so much.

CHAIR YANG: Thank you.

Commissioner Burrows.


Today's discussion was extremely helpful and I know it will continue to inform our work, so I thank all of you for that. And I, you know, in closing, I just note that I was reading the other day, in March 1964, a statement that Martin Luther King gave to the nation in that year shortly as they were beginning the debate in the senate; a historic and way too lengthy debate that went on until June about the Civil Rights Act. And he predicted, and I'd like to quote, "When the legislation becomes law, its vitality and power will depend as much on its implementation, as on the strength of its declarations." And he explained that ultimately, executive action determines what force and effect legislation will have.

That's true not just of the Civil Rights Act, but also of all the statutes that we enforce and I think should serve as a call to action for all of us on this 50th anniversary year.

We've had a number of Commission meetings this year and heard from problems facing American workers like Laudente Montoya, who testified in January about the shameful racial harassment that he and his co.workers faced: ethnic slurs from a supervisor, constant equal employment opportunity harasser who had a different slur for everyone in the workforce, and how he dealt with that in Wyoming.

We heard from Victoria Mesa-Estrada, who represents immigrant women and many of them had been sexually assaulted on the job when we were in Florida in April.

We heard from Jacqueline Hines, a former temporary worker in Tennessee who was abruptly fired from a minimum wage job for protesting a supervisor's sexual harassment.

And I think the information that we've received today will help the Commission be as effective as possible in figuring out how to best serve these courageous employees who depend on this Agency every day.

So I thank you, and I've learned a great deal and I think we'll put your contributions to very good use.

Madam Chair, I yield back the remainder of my time.

CHAIR YANG: Thank you, Commissioner Burrows.

As you have all shown us today, we have made tremendous progress in advancing the goal of equality in our workplaces today. What I'd ask for for our 50th birthday, is that, as a nation, we renew that commitment; that we tackle some of these complex issues that we raised today head on.

Progress may sometimes appear inevitable, but as Professor Tomaskovic.Devey's research has shown; it is not. It can stall. We can see occupations resegregate if we are not vigilant. And as Chair Dominguez said today; it is that constant vigilance that ensures continued progress.

And whether it's the alligators or the Whack.a.Mole that keeps coming up; we need to remain vigilant about the new and emerging forms of discrimination.

I appreciate the ideas you've given us today about some of the solutions that we can explore to address these challenges. There are promising opportunities to use technology to make better job.related decisions; but we must be sure we understand how these decisions are being made; to make sure that our selection processes do not introduce new forms of discrimination.

And how we identify those effective procedures for ensuring accountability and monitoring will be critical for all of us in addition to being our nation's chief enforcement agency; we are also an employer for over 2,200 people around the country.

And I am committed to building a model workplace here and to leading the federal government in building a model workplace across the federal government.

So it truly is a partnership, as Mr. Gay has implored us. We view the employer community as an important partner in our work because those solutions that employers are working on exploring every day, are the ideas that can help us build better workplaces here for ourselves and for the federal government and across the nation.

So I appreciate all the time that you all spend every day in your work and in your lives to help build stronger workplaces because, it is that knowledge that we as an agency want to lift up to help more employers, more employees across the country to build those stronger workplaces for themselves. So I thank you all for your tremendous testimony today.

I have a number of pieces of information I must share for the record.

The Commission will hold the meeting record open for 15 days, and we invite members of the public to submit written comments on any issues or matters discussed at this meeting. Those comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M Street Northeast, Washington, D.C., 20507 or e.mailed to: That is all one word in the e.mail address.

All comments will be made available to members of the Commission and to Commission staff working on the matters discussed at the meeting.

In addition, comments may be disclosed to the public and providing comments and responses to the solicitation; you consent to their use in consideration by the Commission and to their public dissemination.

Accordingly, please do not include any information in submitted comments that you would not make public .. you would not make public such as your home address, telephone number, etc.

Also note that when comments are submitted by e.mail, the sender's e.mail address automatically appears on the message.

I would once again like to thank you all for participating in today's meeting. You have each brought invaluable insights into our discussions today that will help us as we continue our work over the next 50 years.

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


CHAIR YANG: Is there a second?


CHAIR YANG: All in favor?


CHAIR YANG: Opposed?

(No response.)

CHAIR YANG: Thank you. The meeting is adjourned.

(Whereupon, the U.S. Equal Employment Opportunity Commission Meeting held on July 1, 2015 was adjourned at 12:22 p.m.)