Statement of Dianna Johnston

The U.S. Equal Employment Opportunity Commission

Commission Meeting on Race and Color Discrimination of April 19, 2006, Washington D.C.

Good morning, Madam Chair, Madam Vice Chair, and Commissioners. I am pleased to be here today to be part of this significant undertaking, which begins with issuance of a Compliance Manual section on Race and Color discrimination. That document originated in the Office of Legal Counsel and is the primary focus of our remarks today. However, the Commission today does more than issue an important document. It is also embarking on a new investigator training program for all Commission investigative and legal staff. The training marries the new Manual section on Race and Color discrimination to the program to combat systemic discrimination that you approved two weeks ago.

Inasmuch as the Commission was established over 41 years ago, some constituents will ask, why now?

As you know, the impetus for the formation of the EEOC was the struggle that grew in the 1950's and 60's to confront the immorality and injustice of racial inequality. The Commission's role was to channel the energy of that historic moment and the concomitant consensus for change into enforcement strategies to eradicate employment discrimination and promote equal employment opportunity. And, it has played that role; by promoting voluntary compliance, litigating when persuasion did not work, and helping shape a body of law that has changed the face of employment discrimination in this country.

But much has changed in the past 40 years. Clearly, race is not the only barrier to equal opportunity; the Commission also works to combat employment discrimination based on sex, national origin, religion, age, and disability. On the plus side, employment opportunities for racial minorities have expanded and racial discrimination of the sort confronted in the 60's has diminished.

Yet there is more to do and that is why we are here today.

  • Race discrimination charges continue to constitute the largest percentage of our charge receipts.
  • The Commission has written little specifically about race. No doubt that's because race discrimination is the basis for employment discrimination law.The principles of disparate treatment and disparate impact were developed in the context of race discrimination. Much that has been written is to address variations on those basic legal principles. Nevertheless, this Commission has concluded that an agency born of the need to remedy race discrimination should more expressly address race in its written guidance.
  • In addition, the face of race discrimination has changed significantly since the Commission was established in 1965. Few employers today would openly refuse to promote an employee because of his race. Yet we know that racial minorities continue to be significantly under-represented in higher management in most corporations.

In 2001, the Office of Legal Counsel began working to address this policy gap by beginning to draft a Compliance Manual section on Race and Color Discrimination. Mr. Anderson will discuss the process that went into developing the section and will briefly discuss its content. I just want to note the considerable care that has gone into it.

  • It has been a truly collaborative effort. Not only agency staff, but also the Chair, Commissioners and their staffs, have been intimately involved in this project. I cannot mention everybody who participated in the effort, but Vice Chair Earp and Commissioner Ishimaru have played a major role; they and their staffs have contributed significant insights. Special commendation goes to Paula Bruner, who made finalizing this document her personal mission. Without her efforts, I'm not sure we'd be here today.
  • The central person in the process has been Corbett Anderson. He began crafting this document in 2001, when he worked in the Office of Legal Counsel. He retained responsibility for it even after he left Legal Counsel, while working in the Office of the Chair and in the Washington Field Office. No one has done as much to assure that the Commission clearly and straightforwardly articulated the problem of race discrimination in employment and identified approaches to preventing, correcting, and, when necessary, punishing it. [Turn over to Corbett.]

[Corbett turns it back to me to say the following]

As I noted at the outset, the Commission is undertaking a Commission-wide training program to assure that Commission staff fully appreciates and implements the guidance set forth in this manual section. This training is important because the face of race discrimination has changed. First, it is about more than black and white. Second, and of particular relevance to the training, race discrimination has largely gone underground.

  • It has gone underground not just in the sense that those employers who do discriminate, do not do so openly.
  • It has also gone underground in the sense that decision makers often do not recognize that race affects their decisionmaking. The Manual section recognizes that such unconscious bias can limit employment opportunity every bit as much as conscious bias.

Thus, the training is intended to help investigators figure out when it is appropriate to dig more deeply and how to do so when circumstances warrant. It encourages them to look beyond an employer's plausible position statement and helps them determine when additional investigation is appropriate. It also helps investigators determine when – and how – to check for patterns that might indicate discrimination.

In short, in issuing this document, implementing a training program, and integrating it with the goal of combating systemic discrimination, the Commission embarks on a significant new enforcement effort. I could not be more pleased to be a part of it.

This page was last modified on June 12, 2006.