WEBVTT 00:05.876 --> 00:07.125 Chair Yang: Good morning everyone. 00:08.125 --> 00:09.918 The meeting will now come to order. 00:10.083 --> 00:11.709 Thank you all for being here. 00:11.417 --> 00:13.751 In accordance with the Sunshine Act, 00:12.876 --> 00:16.334 today's meeting is open to public observation 00:16.375 --> 00:19.375 of the Commissions' deliberations and voting. 00:19.501 --> 00:22.501 First, I would like to invite Malcolm Medley, 00:22.834 --> 00:25.834 our Director of the EEOC's Miami District Office, 00:25.083 --> 00:27.083 to come up and say a few words 00:27.083 --> 00:28.626 to welcome us all here. 00:37.459 --> 00:40.125 Malcolm Medley: Good morning, everyone. 00:42.501 --> 00:45.501 Chair Yang, Commissioner Barker, Commissioner Feldblum, 00:45.792 --> 00:48.626 Commissioner Lipnic, Commissioner Burrows, 00:48.834 --> 00:51.417 and to all the other EEOC senior staff. 00:51.209 --> 00:54.209 I'm Malcolm Medley. I'm the District Director for 00:55.459 --> 00:56.792 this Miami District, 00:56.042 --> 00:58.334 and as you know the Miami district 00:58.667 --> 01:01.667 includes all but a few counties in the state of Florida. 01:01.959 --> 01:04.959 It also includes the Commonwealth of Puerto Rico 01:04.584 --> 01:07.042 and the United States Virgin Islands. 01:06.584 --> 01:09.584 So on behalf of the staff of the Miami district, 01:09.959 --> 01:11.918 our state and local partners, 01:12.083 --> 01:13.667 and all our stakeholders 01:14.709 --> 01:17.501 it is my pleasure to welcome you to Miami. 01:17.334 --> 01:20.334 I also would like to welcome today's panelists 01:21.375 --> 01:23.918 and speakers, fellow federal managers, 01:24.751 --> 01:27.751 members of the bar, and members of the public. 01:28.876 --> 01:31.876 I'm also pleased that some of our EEOC Miami staff members 01:32.959 --> 01:35.959 are present for this very significant meeting. 01:36.918 --> 01:39.292 Your meeting Chair and Commissioners 01:40.501 --> 01:44.626 is not only significant because this is 01:44.792 --> 01:47.459 an opportunity for a formal EEOC meeting 01:48.125 --> 01:50.792 to occur here, and that has not happened 01:51.167 --> 01:54.167 in some time that it has happened outside of Washington. 01:54.667 --> 01:56.959 But today's meeting is significant 01:56.209 --> 01:58.751 because by coming here this Commission 01:58.792 --> 02:01.042 brings the formal work of the EEOC 02:01.584 --> 02:04.584 to the cities and to the people that it serves. 02:05.375 --> 02:07.417 Indeed many of today's speakers 02:07.501 --> 02:10.250 may not have otherwise had an opportunity 02:11.125 --> 02:12.542 to address this body. 02:14.209 --> 02:15.876 Your meeting today, here, 02:16.626 --> 02:19.459 is a symbol of the Commission's commitment 02:19.501 --> 02:22.501 to engage in a collaborative working relationship 02:23.334 --> 02:26.334 with members of the business community, advocates, 02:27.125 --> 02:31.209 state and local governments and fellow government agencies. 02:31.501 --> 02:34.042 Your meeting today is also significant 02:33.501 --> 02:35.834 because of its topic and the theme. 02:37.125 --> 02:39.918 Our examination of the EEOC after 50 years 02:40.417 --> 02:43.417 and how we confront racial and ethnic discrimination in 02:43.042 --> 02:44.167 today's workplace 02:45.292 --> 02:48.292 is a critical conversation for us to have at this time. 02:49.667 --> 02:52.667 As someone who has spent 25 years in the civil rights arena 02:52.751 --> 02:54.667 as an attorney on both sides, 02:54.667 --> 02:56.209 in corporate positions, 02:55.292 --> 02:57.751 as a state civil rights Commissioner, 02:58.542 --> 03:01.083 as a professor, and now EEOC director, 03:01.167 --> 03:03.876 I've studied the history of civil rights, 03:03.709 --> 03:06.459 I've taught the theories of civil rights, 03:07.042 --> 03:10.042 and I have developed policies related to civil rights. 03:09.667 --> 03:12.334 Most importantly, I've lived the reality 03:13.375 --> 03:14.918 of civil rights issues. 03:14.834 --> 03:16.459 I've also been a witness 03:16.334 --> 03:18.751 to the advancements and improvements 03:19.209 --> 03:20.542 that have been made. 03:21.083 --> 03:23.417 I have seen the progress and impact 03:23.209 --> 03:24.959 that 50 years of EEOC work 03:26.000 --> 03:29.000 has had in providing equal employment opportunities 03:29.250 --> 03:30.042 for so many. 03:31.292 --> 03:32.083 I, like you, 03:32.167 --> 03:34.167 have seen the emerging issues, 03:34.709 --> 03:36.709 the rapidly changing case law, 03:37.334 --> 03:39.792 and our evolving enforcement efforts. 03:40.751 --> 03:42.334 Yes, times are changing, 03:42.626 --> 03:44.918 and even as we continue to address 03:44.000 --> 03:46.959 even the most blatant acts of discrimination 03:46.709 --> 03:48.250 that continue to occur, 03:48.751 --> 03:51.584 we must be mindful of the more subtle acts 03:52.834 --> 03:54.375 and the emerging areas. 03:55.709 --> 03:58.709 I am very pleased that this Commission continues 03:59.042 --> 04:01.959 to keep in sight the victims that turn to us 04:03.542 --> 04:05.542 and the parties or respondents 04:05.417 --> 04:07.375 who await our determinations. 04:07.918 --> 04:10.918 I am truly proud to be part of an organization 04:11.334 --> 04:12.709 that serves everyone. 04:13.250 --> 04:15.792 And so as we celebrate and commemorate 04:16.209 --> 04:17.334 50 years of EEOC, 04:16.334 --> 04:19.125 I join you, Madam Chair and Commissioners, 04:19.125 --> 04:21.918 in inviting everyone not just to celebrate 04:22.209 --> 04:24.751 but to join us in making the workplace 04:25.125 --> 04:27.292 fair and equal for all employees. 04:27.375 --> 04:28.834 Thank you and welcome. 04:32.834 --> 04:35.501 Chair Yang: Thank you so much, Malcolm. 04:35.292 --> 04:38.292 At this time I would like to ask Bernadette Wilson 04:38.459 --> 04:41.125 to announce any notation notes that have 04:39.667 --> 04:42.667 taken place since the last Commission meeting. 04:42.626 --> 04:45.250 Bernadette Wilson: Good morning. And before I begin, 04:46.375 --> 04:48.042 is there anyone in need of sign language 04:48.209 --> 04:49.584 interpreter services? 04:53.834 --> 04:54.959 Okay. Thank you. 04:56.083 --> 04:59.083 Madam Chair, Commissioners, Deputy General Counsel, 04:58.626 --> 05:01.626 Assistant Legal Counsel, I'm Bernadette Wilson 05:01.375 --> 05:03.417 from the Executive Secretariat. 05:03.626 --> 05:05.751 We'd like to remind our audience 05:04.501 --> 05:07.501 that questions and comments from the audience 05:07.417 --> 05:09.792 are not permitted during the meeting 05:09.375 --> 05:12.375 and we ask that you carry on any conversations 05:12.501 --> 05:14.167 outside the meeting room, 05:14.667 --> 05:16.501 departing and reentering as 05:16.667 --> 05:18.000 quietly as possible. 05:18.334 --> 05:20.584 Also, please take this opportunity 05:20.501 --> 05:22.375 to turn your cell phones off 05:23.167 --> 05:24.417 or to vibrate mode. 05:24.292 --> 05:26.959 I would also like to remind the audience 05:27.584 --> 05:29.250 that in case of emergency 05:29.334 --> 05:31.584 there are exit doors to your right 05:32.751 --> 05:33.918 and to your left. 05:34.375 --> 05:36.959 Additionally, the bathrooms are located 05:37.792 --> 05:40.792 outside the right exit door and to your left. 05:42.501 --> 05:44.876 During the period January 10th, 2015 05:46.751 --> 05:48.209 through April 13, 2015 05:49.334 --> 05:52.334 the Commission acted on 13 items by notation vote, 05:52.834 --> 05:55.584 approved amicus participation in 7 cases, 05:56.083 --> 05:58.417 approved a federal sector decision, 05:58.959 --> 06:01.209 approved a subpoena determination, 06:01.792 --> 06:04.792 approved a Memorandum of Understanding between EEOC 06:04.876 --> 06:07.876 and Department of Justice Civil Rights Division, 06:08.459 --> 06:11.459 approved a task order for E-gov travel services, 06:12.918 --> 06:15.792 approved the Spring 2015 Regulatory Agenda, 06:15.709 --> 06:18.626 and approved a notice of proposed rulemaking 06:18.542 --> 06:20.417 to amend the ADA regulations 06:24.042 --> 06:25.792 at 29 CFR Section 1630.14d 06:25.834 --> 06:28.834 as they relate to employer wellness programs. 06:29.834 --> 06:30.667 Madam chair. 06:29.834 --> 06:32.167 Chair Yang: Thank you, Ms. Wilson. 06:32.167 --> 06:34.250 And thank you to all of you for 06:34.375 --> 06:35.501 joining us today. 06:36.542 --> 06:38.334 This meeting is EEOC at 50: 06:37.959 --> 06:40.876 Confronting Racial and Ethnic Discrimination 06:41.209 --> 06:43.209 in the 21st Century Workplace. 06:43.542 --> 06:45.501 We are so glad to be in Miami 06:45.167 --> 06:47.000 for this Commission meeting. 06:46.459 --> 06:49.042 Although we frequently conduct outreach 06:49.209 --> 06:50.584 out in the community, 06:50.250 --> 06:52.375 this is the first public meeting 06:52.542 --> 06:55.459 outside of Washington D.C. in over a decade. 06:55.417 --> 06:58.042 We see this as an important opportunity 06:57.876 --> 06:58.792 for us to hear 06:58.959 --> 07:00.834 directly from the community. 07:00.667 --> 07:03.417 And this is a particularly important year 07:03.584 --> 07:04.918 for us as an agency. 07:04.626 --> 07:07.250 We are celebrating our 50th anniversary 07:07.918 --> 07:09.792 of our agency this July 2nd. 07:11.000 --> 07:12.626 That's a year to the day 07:12.375 --> 07:14.918 after the Civil Rights Act was signed. 07:15.501 --> 07:18.501 And this anniversary offers us the opportunity 07:19.459 --> 07:21.334 to engage all who care about 07:20.626 --> 07:23.626 promoting equal opportunity in the workforce. 07:24.209 --> 07:27.209 It gives us a chance to take stock of where we are 07:27.334 --> 07:29.792 and to think about where we're going, 07:29.626 --> 07:31.834 and to identify the barriers that 07:31.792 --> 07:34.125 continue to exist in our workplaces 07:34.250 --> 07:36.709 and to think about the concrete steps 07:37.459 --> 07:38.459 we can all take 07:38.375 --> 07:40.792 to find solutions to those barriers, 07:41.209 --> 07:43.334 and widen opportunities for all. 07:43.167 --> 07:45.626 Like many parts of the United States, 07:46.667 --> 07:48.959 Florida has seen phenomenal growth, 07:50.584 --> 07:53.334 it has a more and more diverse population 07:53.834 --> 07:55.876 and an increasingly multiethnic 07:57.375 --> 07:58.876 and diverse population. 07:59.667 --> 08:02.209 It gives us a fitting and unique lens, 08:02.584 --> 08:05.542 in many respects, to examine race, color and 08:05.876 --> 08:08.876 ethnicity discrimination, as well as their intersection. 08:08.959 --> 08:11.959 Although there has been considerable progress 08:11.667 --> 08:13.751 through the years in many areas 08:13.542 --> 08:16.542 we all know that significant challenges still remain. 08:17.501 --> 08:19.876 We see the persistence of racial and 08:20.334 --> 08:22.667 ethnic discrimination in both overt 08:23.083 --> 08:24.501 and more subtle forms 08:25.125 --> 08:27.042 in workplaces across America. 08:27.459 --> 08:29.876 I'll share with you some statistics. 08:29.709 --> 08:31.125 This past fiscal year 08:33.125 --> 08:35.209 the EEOC received 7,528 charges 08:35.584 --> 08:37.501 of discrimination in Florida. 08:37.876 --> 08:39.792 The second most of any state. 08:39.918 --> 08:42.876 Race discrimination continues to be the most 08:43.209 --> 08:45.959 frequently alleged basis under Title VII, 08:47.292 --> 08:50.292 comprising 29 percent of all charges filed in Florida. 08:50.626 --> 08:52.626 National origin discrimination 08:53.459 --> 08:56.459 was alleged in 18 percent of charges filed in Florida 08:56.167 --> 08:58.959 which is almost double the rate nationally 09:00.083 --> 09:03.083 where it is alleged in 10.8 percent of all charges. 09:04.125 --> 09:06.918 We know that it's vitally important for us 09:07.334 --> 09:10.334 as an agency to examine how racial and ethnic 09:10.417 --> 09:13.417 discrimination endures in today's work environment 09:13.792 --> 09:16.209 and how our workplaces are changing, 09:16.584 --> 09:18.250 so as an agency can adapt 09:17.626 --> 09:20.042 our enforcement and outreach effort, 09:20.626 --> 09:23.626 managing an increasingly diverse multilingual, 09:24.501 --> 09:27.501 multiethnic workforce raises challenges for employers. 09:27.792 --> 09:30.792 We would like to hear about barriers that remain 09:31.167 --> 09:33.876 in hiring, pay, retention and advancement 09:34.417 --> 09:36.709 for racial and ethnic individuals, 09:36.584 --> 09:39.250 as well as new issues that are emerging. 09:39.042 --> 09:42.042 We are interested in the steps that are being taken 09:41.626 --> 09:43.375 to confront these barriers 09:44.667 --> 09:47.667 and recommendations for solutions to prevent discrimination, 09:49.501 --> 09:52.501 as well as best practices that employers find working. 09:52.876 --> 09:55.334 We are interested in hearing from you 09:55.167 --> 09:57.375 about what the EEOC can do better 09:57.876 --> 10:00.209 to serve both workers and employers 10:00.792 --> 10:03.792 in order to enhance our effectiveness as an agency. 10:04.626 --> 10:07.626 I want to thank each of our witnesses for joining us today 10:07.959 --> 10:10.959 and for taking the time to prepare the written testimony. 10:12.042 --> 10:15.042 We are fortunate to have such a distinguished panel with us. 10:14.501 --> 10:17.083 And I have found your written testimony 10:17.584 --> 10:20.417 to be thoughtful and extremely informative. 10:20.125 --> 10:22.959 This testimony is available on our website, 10:23.125 --> 10:26.125 and I look forward to hearing from you today. 10:26.751 --> 10:29.751 I also would like to thank those who put this meeting together, 10:29.292 --> 10:32.292 convening the meeting outside Washington, D.C. 10:32.125 --> 10:34.834 required some additional logistical work, 10:35.167 --> 10:38.167 and I'd especially like to recognize those efforts. 10:38.751 --> 10:41.751 I'd like to thank Miami-Dade College and Amanda Muñoz 10:40.542 --> 10:43.542 for allowing the Commission to hold the meeting 10:43.542 --> 10:45.334 in this wonderful facility. 10:45.417 --> 10:48.417 And I would like to take a moment to also acknowledge 10:48.209 --> 10:50.209 Congresswoman Fredrica Wilson, 10:50.042 --> 10:53.042 the ranking member of the EEOC's oversight subcommittee 10:52.918 --> 10:55.083 in the House of Representatives, 10:57.250 --> 11:00.250 the Education and Workforce Subcommittee on Workforce Protections. 11:02.125 --> 11:05.125 I know that Congresswoman Wilson has dedicated her life 11:05.083 --> 11:07.667 in pursuit of equal opportunity for all 11:07.501 --> 11:10.501 and devoted herself to solving the important issues 11:10.626 --> 11:12.542 we are here to discuss today. 11:13.626 --> 11:16.626 I should clarify, she is the ranking minority member. 11:16.250 --> 11:19.209 We understand that unfortunately she was not 11:18.501 --> 11:21.501 able to be here today. But I did have the chance 11:21.334 --> 11:23.792 to meet with her in Washington, D.C., 11:23.417 --> 11:25.083 and I wanted to thank her 11:25.083 --> 11:27.626 for her continued support of the EEOC. 11:27.584 --> 11:29.709 I would also like to acknowledge 11:29.792 --> 11:32.792 and thank our staff from our Miami District Office 11:32.125 --> 11:33.792 who have been so helpful. 11:33.334 --> 11:35.834 You heard from Malcolm Medley earlier. 11:35.417 --> 11:38.417 We also have Robert Weisberg, our Regional Attorney, 11:38.000 --> 11:39.959 who you will hear from today. 11:40.459 --> 11:42.792 Michael Bethea and Elaine McArthur, 11:42.334 --> 11:45.334 who have also been hard at work pulling this together. 11:45.501 --> 11:46.626 And I'd also like 11:45.167 --> 11:48.167 to thank Kathy Ventreel-Monsees and Tim Riera from my staff, 11:50.480 --> 11:53.480 and Lexer Quamie from Commissioner Burrows' staff, 11:55.086 --> 11:58.086 also Brett Brenner, Kimberly Smith-Brown, Christine Nazer 11:58.320 --> 12:00.120 and Justine Lisser from our 11:59.690 --> 12:02.690 Office of Communications and Legislative Affairs. 12:03.794 --> 12:06.794 Kristen Hartwell from our Office of Information Technology, 12:07.103 --> 12:10.103 and Bernadette Wilson, from the Office of the Executive Secretariat 12:10.434 --> 12:13.434 for the extra effort that went in to pulling this meeting together. 12:13.268 --> 12:16.268 I would now like to invite my fellow Commissioners 12:15.737 --> 12:17.804 to make any opening statements, 12:16.841 --> 12:19.574 and we'll start with Commissioner Barker. 12:20.373 --> 12:23.373 Commissioner Barker: Thank you, I'll use these microphones 12:22.613 --> 12:25.146 so you all tell me if you can hear me. 12:26.647 --> 12:27.447 Jim, thanks. 12:30.054 --> 12:32.587 It's such a pleasure to be here today, 12:32.393 --> 12:35.126 and I think it's particularly appropriate 12:34.920 --> 12:37.453 that on our 50th anniversary the Chair 12:37.094 --> 12:39.227 has chosen this particular topic 12:39.096 --> 12:41.029 and this particular location. 12:42.666 --> 12:44.866 We have made great, great strides 12:44.735 --> 12:46.135 in the last 50 years, 12:47.637 --> 12:50.504 but the work of the Commission is not done, 12:50.106 --> 12:51.773 and it never will be done 12:54.676 --> 12:57.676 as new issues emerge and as some issues continue 12:59.483 --> 13:01.750 and may always continue to present 13:03.361 --> 13:06.361 problems in the whole arena of discrimination. 13:06.523 --> 13:09.190 So it's particularly appropriate I think 13:10.027 --> 13:13.027 that we focus on race and ethnic discrimination, 13:15.666 --> 13:18.666 because those are two giant issues for the EEOC, 13:20.771 --> 13:23.771 two giant challenges that continue to be in front of us. 13:25.573 --> 13:27.373 So I'm particularly pleased 13:27.543 --> 13:29.143 that we're here in Miami 13:31.581 --> 13:33.514 to address this topic because 13:35.381 --> 13:38.381 ethnic discrimination is a particular concern of mine, 13:38.420 --> 13:40.420 race discrimination of course, 13:40.522 --> 13:42.989 but there are so many emerging issues 13:43.594 --> 13:45.527 in ethnic discrimination that 13:45.599 --> 13:48.599 it's important that the Commission really focus 13:48.770 --> 13:50.903 our attention and our assets on, 13:51.764 --> 13:54.764 and particularly as our demographics in the United States 13:55.305 --> 13:57.572 continue to change so dramatically 13:57.775 --> 14:00.375 and the demographics that are predicted 14:01.479 --> 14:04.479 in 10 years, 20 years, and 50 years are -- so 14:04.948 --> 14:07.548 present such amazing challenges for us, 14:08.149 --> 14:11.149 particularly with the group of the Latino community, 14:11.688 --> 14:13.955 but also other ethnic communities. 14:12.757 --> 14:15.757 So we're going to be a different United States 14:15.725 --> 14:18.058 in 5 years, 10 years, and 20 years, 14:18.896 --> 14:21.896 so it's really important that we get ahead of those issues. 14:22.532 --> 14:25.465 A particular concern of mine has always been 14:27.270 --> 14:30.070 the treatment of migrant farm worker women 14:30.674 --> 14:33.674 and the fact that still, in this day and time, 14:34.138 --> 14:37.005 there are numerous occasions where they are 14:41.751 --> 14:44.684 subjected to sexual abuse, sexual extortion, 14:47.625 --> 14:50.558 so -- and Florida, unfortunately, because of 14:50.895 --> 14:53.895 the location of a number of the large farms here 14:54.997 --> 14:57.997 and employment of a lot of Latino migrant farm worker women 14:58.001 --> 15:00.801 is a case where we have seen those issues. 15:00.871 --> 15:03.871 And what makes that issue particularly difficult 15:03.676 --> 15:05.143 for us as a Commission 15:05.743 --> 15:08.743 is the reluctance of these women to come forward 15:09.844 --> 15:12.844 and the difficulty for us to reach out to them, 15:14.652 --> 15:17.185 find them, and give them the assurance 15:17.057 --> 15:19.990 that we, as a Commission, are there for them 15:19.260 --> 15:21.527 and we can do things for them that 15:23.026 --> 15:25.893 the Justice Department, frankly, cannot do. 15:26.731 --> 15:29.731 So particularly important that we're here today 15:29.733 --> 15:31.533 and we examine these issues 15:30.770 --> 15:33.303 and I appreciate all of you for coming 15:32.608 --> 15:35.608 and look forward to hearing what the panelists 15:36.138 --> 15:37.671 can give us. Thank you. 15:41.411 --> 15:43.544 Chair Yang: now, let's hear from 15:43.112 --> 15:44.579 Commissioner Feldblum. 15:46.318 --> 15:48.918 Commissioner Feldblum: Thank you. Thank you Chair Yang for 15:48.886 --> 15:51.486 taking us on the road for this hearing. 15:52.356 --> 15:54.556 In the early years of our agency, 15:55.660 --> 15:58.660 as Don Livingston actually detailed in his written testimony, 15:59.696 --> 16:02.496 the EEOC often held local community forums 16:02.967 --> 16:05.567 to make it clear that the EEOC was here 16:05.701 --> 16:07.368 and ready to do its work. 16:07.600 --> 16:09.933 So I agree that in this year of the 16:10.304 --> 16:12.237 50th anniversary of the EEOC, 16:12.775 --> 16:15.308 it is good that we are holding a forum 16:15.877 --> 16:17.344 here in Miami, Florida 16:19.216 --> 16:22.216 to talk about one of the most persistent issues, 16:23.053 --> 16:26.053 which is racial and ethnic discrimination in the workplace. 16:26.288 --> 16:28.621 Now, no one doubts that our country 16:28.858 --> 16:30.925 has come a long way since 1964. 16:31.898 --> 16:34.231 You heard that from Malcolm Medley. 16:34.532 --> 16:37.065 You will hear that from our witnesses, 16:36.867 --> 16:39.867 and that is worth celebrating and recognizing. 16:40.204 --> 16:43.204 But as you will also hear from the testimony, 16:43.775 --> 16:46.775 and as our own regional attorney here Bob Weisberg 16:47.614 --> 16:50.614 and Barbara Arnwine in her testimony in particular highlights 16:51.477 --> 16:54.477 these forms of discrimination continue to persist 16:54.617 --> 16:55.750 in our workplaces 16:56.786 --> 16:59.586 often in quite extreme and virulent forms. 17:00.158 --> 17:03.158 So that means that the work of the EEOC is not done. 17:04.767 --> 17:07.767 Now, almost every piece of written testimony we received 17:08.397 --> 17:10.597 also had specific recommendations 17:11.932 --> 17:13.932 for what more the EEOC can do. 17:14.772 --> 17:17.772 I was very happy to see those recommendations. 17:18.609 --> 17:21.609 Now, that's not to say that we're going to be able to do 17:22.446 --> 17:25.446 everything that the witnesses have called upon us to do, 17:26.714 --> 17:28.781 but I believe that the only way 17:29.719 --> 17:31.319 we can do our job better 17:32.355 --> 17:34.155 is if we invite and we hear 17:35.057 --> 17:36.457 and we take seriously 17:36.692 --> 17:38.759 these types of recommendations. 17:39.729 --> 17:42.329 So let me conclude my opening by noting 17:42.397 --> 17:43.864 that I am very pleased 17:44.001 --> 17:45.401 that the EEOC adopted 17:46.003 --> 17:49.003 a Strategic Enforcement Plan for 2012 to 2016. 17:49.403 --> 17:52.403 A number of witnesses highlighted in their testimony 17:52.373 --> 17:54.706 how important it was for the agency 17:57.851 --> 18:00.851 to adopt a plan designed to deploy our limited resources 18:01.678 --> 18:04.145 in a targeted and strategic manner, 18:04.452 --> 18:07.452 and whether it's suggestions for additional research, 18:08.292 --> 18:11.292 which both Dr. Sprigg and Dr. Lundquist noted in their testimony 18:13.027 --> 18:16.027 or called for us to move in a more timely fashion on our charges, 18:16.863 --> 18:19.863 which Ms. Mesa-Estrada called for in her testimony, 18:21.903 --> 18:24.903 or a call for the EEOC to engage with employers 18:25.739 --> 18:28.739 in a proactive manner in their diversity initiatives 18:28.775 --> 18:31.042 that are beyond simple compliance, 18:32.910 --> 18:35.910 which both Ms. Castillo-Frick and Mr. Livingston called for, 18:36.483 --> 18:39.483 any of those elements, any of those suggestions 18:40.825 --> 18:43.825 are pieces that we addressed in our Strategic Enforcement Plan. 18:47.494 --> 18:50.494 So the issue now is to continue implementing that plan 18:51.898 --> 18:53.298 in a rigorous manner. 18:53.167 --> 18:55.834 So I look forward to our witnesses today 18:56.207 --> 18:59.207 providing us with additional information and motivation 18:59.807 --> 19:02.540 to further implement our enforcement plan 19:03.407 --> 19:06.140 in a manner that truly confronts, combats 19:08.516 --> 19:11.516 and oh, if only, eradicates racial and ethnic discrimination 19:11.583 --> 19:12.783 in our workplaces. 19:13.119 --> 19:14.586 Thank you, Chair Yang. 19:13.621 --> 19:16.621 Chair Yang: thank you, now Commissioner Lipnic. 19:17.091 --> 19:20.091 Commissioner Lipnic: Thank you, madam chair. Good morning everyone. 19:21.167 --> 19:24.167 I want to thank the Chair, as my colleagues have done 19:24.260 --> 19:27.260 for the great idea to move our Commission meeting to Miami. 19:27.332 --> 19:30.332 I'm not sure why we're not on a beachfront somewhere 19:29.936 --> 19:31.336 having thise meeting. 19:32.138 --> 19:32.871 (Laughter.) 19:33.004 --> 19:35.004 That will be the next meeting. 19:36.310 --> 19:38.843 In all seriousness, I do want to thank 19:39.378 --> 19:41.645 Miami-Dade College for hosting us, 19:41.809 --> 19:44.476 and for being such gracious hosts today. 19:44.420 --> 19:47.420 Welcome to all of our witnesses and thanks to all of you 19:45.720 --> 19:50.821 for all of the time and effort you have put into 19:50.628 --> 19:53.628 your testimony to be here, and thank you for being here. 19:54.126 --> 19:56.193 Today's topic is quite fitting. 19:56.366 --> 19:59.366 We just wrapped up a year of studying and understanding 19:59.967 --> 20:02.967 the history, and, of course, celebrating the 50th anniversary 20:02.901 --> 20:04.501 of the Civil Rights Act. 20:04.668 --> 20:07.068 We marveled at the resolve and power 20:06.907 --> 20:08.840 of the civil rights movement, 20:09.209 --> 20:11.676 which like all great social movements 20:12.245 --> 20:15.245 brought about real change by creating a bond among people 20:17.380 --> 20:20.380 to attain a higher purpose, equality of opportunity in employment. 20:21.220 --> 20:24.220 We recognize the political courage and will it took 20:24.291 --> 20:27.291 to push over the top a truly transformative law, 20:26.928 --> 20:29.928 and we acknowledge the efforts of the individuals 20:29.897 --> 20:31.964 who breathed life into the law, 20:31.798 --> 20:34.798 and took the necessary steps to start making the movement, 20:35.807 --> 20:37.340 and the Act, a reality. 20:37.437 --> 20:40.170 And this year, we will be doing the same, 20:39.539 --> 20:42.206 studying, understanding, and celebrating 20:42.171 --> 20:43.504 the 25th anniversary 20:43.209 --> 20:45.809 of the Americans with Disabilities Act. 20:45.646 --> 20:48.646 My friend Commissioner Feldblum and I were just saying at breakfast 20:48.716 --> 20:51.716 we can't quite believe it's been 25 years already 20:52.050 --> 20:52.983 since the ADA, 20:53.054 --> 20:56.054 and for the 50th anniversary of the Commission itself. 20:57.722 --> 20:59.655 Amidst all that looking back, 20:59.268 --> 21:01.401 today we appropriately, I think, 21:00.995 --> 21:03.728 take the time to do some looking forward. 21:03.630 --> 21:06.030 And this is an understatement alert, 21:07.367 --> 21:10.367 but the America of 2015 is not the America of 1964. 21:11.973 --> 21:14.973 And, similarly, I dare say the America of 2065 21:15.341 --> 21:17.541 will not be the America of today. 21:18.779 --> 21:21.379 I've said this many times in many speeches 21:21.248 --> 21:23.181 I've given over the past year 21:24.885 --> 21:27.018 and really in my tenure at the EEOC, 21:28.053 --> 21:29.320 that 50 years later 21:29.257 --> 21:32.124 we are not an agency going out of business. 21:32.324 --> 21:35.324 There is plenty of good old fashioned discrimination 21:35.727 --> 21:36.594 to go around. 21:36.295 --> 21:38.762 I don't mean that lightly, of course, 21:38.532 --> 21:41.332 but I do believe it's an unfortunate truth 21:40.368 --> 21:43.368 that will drive the core of the Commission's work. 21:44.837 --> 21:46.704 But beyond that, what issues 21:46.610 --> 21:48.743 in equal employment opportunity, 21:49.343 --> 21:52.343 in particular for us, can we reasonably predict 21:52.614 --> 21:55.547 will confront the nation, and the Commission 21:56.349 --> 21:58.616 as we bound into the 21st century. 21:57.919 --> 22:00.919 I want to highlight two bigger picture issues 22:00.716 --> 22:02.716 that I think we should keep at 22:02.452 --> 22:04.252 the forefront of our minds. 22:03.556 --> 22:06.556 First, as some of my colleagues have alluded to, 22:06.663 --> 22:09.530 we should consider who will be the America? 22:09.596 --> 22:12.596 And who will be the American workforce of the future? 22:14.234 --> 22:16.967 Like Dr. Spriggs, I shared his background 22:16.404 --> 22:18.737 as an Assistant Secretary of Labor, 22:19.073 --> 22:22.073 and perhaps the most important thing I would want to point out 22:23.044 --> 22:26.044 is a recent book and findings from Bill Frey, 22:25.046 --> 22:27.579 who is with the Brookings Institution, 22:27.347 --> 22:30.147 in his book about the diversity explosion. 22:29.583 --> 22:32.450 Sometime around the middle of this century, 22:32.552 --> 22:34.752 there will be no racial majority, 22:34.521 --> 22:37.054 we will be a majority-minority nation. 22:37.891 --> 22:40.891 What does this mean for equal employment opportunity? 22:41.826 --> 22:43.293 I said this many times 22:43.161 --> 22:45.361 over the last year in particular, 22:44.798 --> 22:47.131 reflecting on the Civil Rights Act, 22:46.600 --> 22:49.200 that the remarkable thing about the law 22:49.503 --> 22:51.503 is that it both met the moment 22:52.004 --> 22:53.804 and it foretold the future, 22:54.408 --> 22:56.608 for example, when it included sex 22:56.075 --> 22:58.142 as a protected basis in the law 22:58.345 --> 23:00.678 that helped transform the workplace 23:01.149 --> 23:03.216 in ways that the law's crafters 23:03.683 --> 23:05.283 probably never intended, 23:05.882 --> 23:08.615 but the Act was also very much a response 23:08.719 --> 23:10.919 to a particular movement in time, 23:11.492 --> 23:14.492 in an overwhelmingly binary, then black-and-white nation. 23:14.728 --> 23:17.595 The America of the future will not be that, 23:17.798 --> 23:19.131 and so on one level, 23:18.436 --> 23:21.436 how will the law be called on in the next 50, 23:21.662 --> 23:24.529 100 years to address the issues of the day? 23:25.467 --> 23:27.600 Another issue worth considering, 23:27.673 --> 23:30.673 this change, especially the day-to-day existence 23:30.076 --> 23:32.209 during the racial transformation 23:32.212 --> 23:34.412 will not come without challenges. 23:34.980 --> 23:36.713 I don't want to presuppose 23:35.648 --> 23:38.248 that the workplace of the next 50 years 23:37.650 --> 23:40.050 will be filled with cultural strife. 23:39.786 --> 23:41.586 But it's certainly an issue 23:41.456 --> 23:43.389 that we must keep our eye on. 23:43.958 --> 23:46.958 For example, as Mr. Frey highlights in his book, 23:46.760 --> 23:48.760 the shift to majority-minority 23:48.427 --> 23:50.894 will be also be largely generational, 23:51.265 --> 23:53.198 as the aging white population 23:52.999 --> 23:55.999 is replaced by the diversity of today's youth. 23:57.104 --> 24:00.104 The shift may be felt more in certain geographic locations, 24:00.339 --> 24:02.139 as populations move in mass 24:02.980 --> 24:05.980 to new places or expand at higher rates than other groups 24:05.378 --> 24:07.045 where they currently are. 24:09.679 --> 24:12.679 America's workplaces are always microcosms of society, 24:11.985 --> 24:14.718 and we'll be right in the middle of this. 24:14.754 --> 24:17.287 If tensions change and are playing out 24:16.825 --> 24:19.825 in society at large or in particular communities, 24:19.392 --> 24:22.392 we should expect them to similarly manifest themselves 24:22.895 --> 24:24.028 in the workplace. 24:23.831 --> 24:26.831 And so I ask again, how will the law be called upon? 24:27.428 --> 24:30.428 We should also be considering the future of work, 24:30.399 --> 24:32.732 and at the center of this of course 24:32.540 --> 24:35.540 are the technological developments we will see in coming years 24:35.308 --> 24:37.841 and their infusion into the workplace. 24:37.880 --> 24:40.880 Hardly a day goes by that you can't read an article 24:40.953 --> 24:43.953 about how technology is changing work, the workforce, 24:44.212 --> 24:46.279 and workplaces as we know them. 24:45.820 --> 24:48.820 For example, earlier this year, the Economist 24:48.655 --> 24:51.655 featured an article discussed the effects of pairing 24:51.960 --> 24:54.960 an increasingly rootless and flexible workforce 24:55.295 --> 24:58.295 with the power of technology like the smart phone. 24:58.703 --> 25:01.703 The article focused on how more and more entrepreneurs 25:01.006 --> 25:04.006 and freelance-style workers are coming together 25:04.737 --> 25:07.337 to cater to a growing on-demand economy 25:07.541 --> 25:10.408 in which customers are increasingly used to 25:10.745 --> 25:13.745 products and services being delivered nearly instantaneously 25:14.579 --> 25:16.046 via a smart phone app. 25:15.982 --> 25:17.582 Think Uber, for example. 25:17.758 --> 25:19.625 As we learned at our hearing 25:19.086 --> 25:20.819 on social media last year, 25:20.655 --> 25:23.655 a lot of these issues with technology in the workplace 25:23.389 --> 25:25.189 are ones we've seen before, 25:24.492 --> 25:27.492 they may just be dressed up in different clothing. 25:27.823 --> 25:30.823 But in terms of how technology will shape the workplace 25:31.194 --> 25:33.127 and the workforce writ large, 25:33.834 --> 25:36.434 we probably have not seen anything yet. 25:36.670 --> 25:39.603 I ask again how will the law be called upon? 25:40.174 --> 25:43.174 So with this background of who the workforce will be 25:43.010 --> 25:45.743 and all of the forces that will shape it, 25:45.579 --> 25:48.312 I welcome the testimony of our witnesses, 25:47.876 --> 25:50.876 I look forward to your thoughts and expertise. 25:50.873 --> 25:53.406 And Madam Chair, I yield back my time. 25:53.486 --> 25:54.953 Chair Yang: thank you, 25:54.319 --> 25:55.719 Commissioner Burrows. 25:55.789 --> 25:58.789 Commissioner Burrows: Good morning, bienvenidos. 25:58.324 --> 26:00.324 I'd like to join my colleagues 26:00.128 --> 26:03.128 in welcoming our distinguished guests and witnesses 26:04.731 --> 26:07.731 and I'm very pleased that the Commission will be focusing today 26:09.604 --> 26:12.604 on the critical issue of how to most effectively combat 26:13.541 --> 26:16.541 employment discrimination based on race, national origin and color. 26:16.544 --> 26:18.611 To be as effective as possible, 26:20.107 --> 26:23.107 the Equal Employment Opportunity Commission must understand 26:23.438 --> 26:26.438 the ways in which the American society and workforce are changing, 26:26.776 --> 26:29.776 including their diversity. I fully agree with Commissioner Lipnic on that. 26:29.545 --> 26:32.478 This was a diverse nation before the arrival 26:32.679 --> 26:34.279 of Europeans or Africans 26:34.482 --> 26:37.349 because the Native American tribes had vast 26:37.420 --> 26:40.420 and different cultural linguistic and religious practices. 26:40.188 --> 26:42.721 But that diversity has only increased. 26:42.792 --> 26:45.792 Today it includes persons descended from pretty much 26:46.254 --> 26:47.854 every part of the globe. 26:48.164 --> 26:51.164 As the Chair noted, Miami is the perfect location 26:50.596 --> 26:52.463 to talk about that diversity 26:52.535 --> 26:55.535 because it provides a window into the future. 26:56.104 --> 26:59.104 When demographers tell us, as Commissioner Lipnic noted, 26:59.340 --> 27:02.340 the population changes that are already being seen in Miami 27:01.882 --> 27:04.815 will be reflected in the rest of the nation. 27:05.013 --> 27:06.613 In many ways our country 27:07.450 --> 27:10.450 has had a history that's a march of progress, 27:11.052 --> 27:13.519 sometimes more deliberate than speedy 27:14.891 --> 27:17.891 towards realizing the goals of justice and equal opportunity. 27:18.226 --> 27:21.226 In the last half century since the EEOC was established, 27:21.730 --> 27:24.730 it's had a vital role in continuing that progress. 27:24.668 --> 27:27.535 Our work in enforcing the civil rights laws 27:26.838 --> 27:29.838 that protect against job discrimination has opened 27:30.173 --> 27:33.173 new doors of opportunity, helped make this a country 27:34.638 --> 27:36.771 that's stronger, better, fairer. 27:35.544 --> 27:38.544 And addressing discrimination on the basis of race 27:38.116 --> 27:40.783 has been a key part of that work, indeed 27:41.883 --> 27:44.883 it was African-American resistance to racial discrimination 27:43.952 --> 27:46.819 that laid the foundation for passage of the 27:48.191 --> 27:51.191 Civil Rights Act of 1964 and establishment of the EEOC itself. 27:51.260 --> 27:54.260 Fortunately we've made a great deal of improvement 27:54.163 --> 27:56.296 since opening our doors in 1965, 27:57.098 --> 27:59.898 the same year, almost exactly to this day, 28:01.508 --> 28:04.508 in which Dr. King said that discrimination had limited 28:04.340 --> 28:07.340 African-Americans to semi-skilled and unskilled labor, 28:08.439 --> 28:11.439 causing many to see life as a long and desolate corridor 28:12.280 --> 28:13.480 with no exit sign. 28:12.546 --> 28:15.279 But there's still a great deal left to do 28:14.316 --> 28:17.316 to fully eliminate employment discrimination. 28:17.890 --> 28:20.890 So I too look forward to hearing from our distinguished witnesses 28:20.755 --> 28:22.955 about the challenges in this area 28:23.286 --> 28:26.286 and the lessons we can draw from their experiences. 28:25.581 --> 28:28.581 I'm particularly grateful because I know at least two 28:28.428 --> 28:31.428 of our witnesses need to catch a plane early, 28:32.503 --> 28:35.503 so I anticipate that Dr. Spriggs and Barbara Arnwine 28:34.706 --> 28:37.039 will be leaving a little bit early. 28:37.872 --> 28:39.872 So with that, I will conclude. 28:38.974 --> 28:41.907 I commend the Chair for holding this hearing 28:41.305 --> 28:43.972 to shed light on these important issues, 28:44.609 --> 28:46.276 and I yield back my time. 28:46.112 --> 28:48.579 Chair Yang: Thank you, Commissioners, 28:48.116 --> 28:49.849 we are now pleased to hear 28:48.851 --> 28:51.651 from our distinguished panel of witnesses, 28:51.085 --> 28:53.952 and we will start with Dr. William Spriggs, 28:54.328 --> 28:56.661 the Chief Economist of the AFL-CIO. 28:57.164 --> 29:00.164 Dr. William Spriggs: Thank you very much, Chair Yang, 29:00.462 --> 29:02.995 and to the Commissioners. So I want to 29:04.600 --> 29:07.600 congratulate you for continuing the legacy of 29:08.470 --> 29:10.670 the EEOC and celebrating 50 years 29:11.740 --> 29:14.007 of making a difference in terms of 29:14.415 --> 29:16.548 discrimination in the workplace. 29:17.746 --> 29:20.746 I want to of course start with the historical setting 29:21.346 --> 29:24.079 that Commissioner Burrows just mentioned. 29:25.954 --> 29:28.421 The 50-year anniversary is because of 29:30.294 --> 29:33.294 the vision of A. Philip Randolph, who was a labor leader. 29:34.630 --> 29:37.630 Randolph was very instrumental during World War II 29:38.763 --> 29:41.763 in getting President Roosevelt to put in place an Executive Order 29:41.836 --> 29:44.836 and create the Fair Employment Practices Commission 29:45.942 --> 29:48.675 which was designed to ease discrimination 29:49.511 --> 29:52.511 in the defense industry during the World War II effort. 29:52.247 --> 29:54.047 That wasn't the first time. 29:55.216 --> 29:57.883 During World War I, President Wilson had 29:58.454 --> 30:01.454 a Division of Negro Economics at the Department of Labor 30:03.326 --> 30:06.326 that was trying to do something similar to actually combat abuses 30:06.262 --> 30:08.862 of Arican-American workers in the South 30:10.964 --> 30:13.231 during the World War I war effort. 30:13.802 --> 30:16.802 The accomplishments of the Fair Employment Practices Commission 30:16.941 --> 30:18.074 were quite marked 30:19.442 --> 30:22.442 because it got African-Americans into the defense industry, 30:22.506 --> 30:24.239 particularly in the North. 30:25.581 --> 30:28.581 It had no success in the South, and out of political compromise 30:28.816 --> 30:30.883 agreed it would leave it alone. 30:31.953 --> 30:34.220 So it really was the lesson of the 30:33.594 --> 30:35.994 Fair Employment Practices Commission 30:36.087 --> 30:39.087 that something could be done, that it could be meaningful 30:38.894 --> 30:41.894 if we could end discrimination in employment. 30:42.297 --> 30:45.230 And that was the demand that actually caused 30:45.300 --> 30:48.300 the March on Washington because A. Philip Randolph 30:49.070 --> 30:51.870 saw his vision hadn't been made permanent. 30:51.441 --> 30:54.441 He had threatened a march on Washington during 30:55.109 --> 30:57.242 World War II, and now he decided 30:58.346 --> 31:01.346 we're going to do the march, because President Kennedy's 31:01.890 --> 31:04.623 original civil rights act did not include 31:05.987 --> 31:08.987 a provision on discrimination in the workplace. 31:08.791 --> 31:11.791 In fact, strategically the marchers had to confront 31:12.394 --> 31:15.394 what would they ask for that would really be different 31:15.296 --> 31:17.429 than previous civil rights acts, 31:17.833 --> 31:20.766 and the debate was do we want voting rights? 31:22.668 --> 31:24.868 Or do we want the right to a job? 31:24.941 --> 31:27.674 And as you can tell, the march was called 31:28.881 --> 31:30.948 the March for Jobs and Freedom, 31:30.512 --> 31:33.512 they opted for the demand that there had to be 31:33.214 --> 31:35.814 an end to discrimination in employment. 31:37.419 --> 31:40.419 So that's the impetus behind this Commission, 31:42.795 --> 31:45.795 and immediately we can see the effect of the Act 31:44.993 --> 31:47.593 because for the first time in the South 31:48.430 --> 31:51.430 discrimination in manufacturing came to an end 31:52.234 --> 31:54.767 in large part in the textile industry, 31:54.572 --> 31:57.572 the tobacco industry where African-Americans for the first time 31:58.474 --> 32:01.474 were given meaningful jobs in those industries. 32:01.977 --> 32:04.377 And when you look at the progress of 32:05.551 --> 32:07.684 African-American pay you see the 32:07.010 --> 32:10.010 effect of the Fair Employment Practices Commission 32:09.581 --> 32:12.314 in World War II because there's a bump up 32:11.854 --> 32:14.854 in earnings for African-Americans because in the North 32:15.391 --> 32:17.924 they got access to manufacturing jobs, 32:19.795 --> 32:22.795 and then in the aftermath of the Civil Rights Act 32:23.900 --> 32:26.900 and the implementation and effectiveness of the EEOC its beginning, 32:28.503 --> 32:31.503 you see that African-Americans got meaningful access to jobs in the South, 32:32.775 --> 32:35.775 and in the South that's where you see the rapid rise of black income, 32:36.708 --> 32:39.108 it had already stalled in the North. 32:39.080 --> 32:40.880 Now, here is the challenge. 32:41.951 --> 32:44.484 The challenge is that after 1975, 1978 32:47.884 --> 32:50.884 progress for similarly educated African-Americans and whites stopped. 32:51.460 --> 32:54.460 The progress that African-Americans have made since the 1980s 32:54.530 --> 32:57.530 has all been because of the relative increase 32:58.633 --> 33:01.633 and the education of African-Americans relative to whites. 33:03.839 --> 33:06.839 Otherwise, the pay gaps between equally educated 33:06.640 --> 33:08.373 blacks and whites remains. 33:08.516 --> 33:10.916 The unemployment rate never changed. 33:10.544 --> 33:12.211 It was always two to one, 33:11.778 --> 33:14.778 it was two to one when the Act -- before the Act started, 33:14.316 --> 33:17.316 if you look at the unemployment records from the 1960s 33:16.953 --> 33:19.886 it's two to one, it's two to one afterwards. 33:23.554 --> 33:26.554 So the challenge is that the easy job was done 33:26.757 --> 33:28.090 but the job remains. 33:27.425 --> 33:29.625 And I want to talk really quickly 33:29.497 --> 33:30.897 in my last 12 seconds 33:36.339 --> 33:39.339 because the advance and the improvements and audit studies 33:43.546 --> 33:46.546 in employment have made a technology available, I think, to the EEOC, 33:46.949 --> 33:49.882 that will allow you to benchmark and give us 33:50.619 --> 33:53.219 the background noise of what's going on 33:53.153 --> 33:54.753 in the actual workplace. 33:55.852 --> 33:58.852 These studies come up with astounding results, 34:00.092 --> 34:02.692 very disturbing and astounding results. 34:03.767 --> 34:06.767 We have examples where when you look at the qualifications of 34:06.801 --> 34:09.334 African-Americans who submit for jobs, 34:10.440 --> 34:13.440 that those qualifications don't change their probability 34:13.875 --> 34:15.475 of finding a job at all. 34:16.439 --> 34:19.439 Better résumés don't mean you get a job call back. 34:21.284 --> 34:24.284 Now, we see with white résumés, that yes, better résumés, 34:25.253 --> 34:26.853 better qualified workers 34:26.954 --> 34:29.421 you get a better response in the job. 34:30.497 --> 34:33.497 And this is what is reflected in data we're seeing, 34:34.597 --> 34:37.597 this stall in the employment of African-Americans. 34:39.468 --> 34:42.468 And quickly I would hope that you would do it 34:42.466 --> 34:45.466 so you can find out are you really making a difference? 34:45.440 --> 34:47.507 Are you really moving the ball? 34:48.610 --> 34:51.610 If you have this marker, it will give us a clear indication 34:51.681 --> 34:54.681 and give you an indication of what to look for, 34:55.756 --> 34:58.756 what are the particular forms of discrimination that matter 34:58.020 --> 35:00.553 and, again, in conclusion, I would say 35:03.425 --> 35:06.425 while I talked about disparate impact issues of over-incarceration, 35:09.831 --> 35:12.831 of use of credit scores, of current employment status, 35:16.236 --> 35:19.236 what these audit studies seem to point out is 35:19.841 --> 35:21.774 those are probably all ruses, 35:22.910 --> 35:25.110 they are disparate impact markers 35:24.919 --> 35:27.919 because the employer feels that they'll have cover, 35:28.012 --> 35:31.012 they'll know that if I don't hire somebody, they'll assume 35:30.452 --> 35:33.052 it was because of one of those markers, 35:32.687 --> 35:35.620 and when we do the studies we often find out 35:34.523 --> 35:37.523 they weren't paying attention to those anyway. 35:37.326 --> 35:39.059 This was just their cover. 35:38.360 --> 35:41.360 Chair Yang: Thank you very much, Dr. Spriggs, 35:40.930 --> 35:43.930 We look forward to having a chance to ask you questions 35:43.999 --> 35:46.999 before you have to leave. So I just want to remind everyone 35:46.038 --> 35:49.038 if you can try to keep your eye on the lights here. 35:48.604 --> 35:51.604 They'll have a green, yellow, red, and when it hits red 35:51.735 --> 35:54.735 if you could wrap up, that will ensure we stay on track 35:55.044 --> 35:58.044 and can catch some questions -- fit some questions in 35:57.679 --> 35:58.812 before he leaves. 35:58.478 --> 36:00.878 So now it's my pleasure to introduce 36:00.683 --> 36:03.683 Barbara Arnwine, who has been President and Executive Director 36:03.752 --> 36:06.752 of the National Lawyers Committee for Civil Rights Under the Law 36:07.889 --> 36:10.089 for 35 years and just recently -- 36:10.023 --> 36:11.356 Barbara Arnwine: 26. 36:11.392 --> 36:12.392 Chair Yang: 36. 36:12.727 --> 36:15.727 Barbara Arnwine: No, 26 at the national and 7 local. 36:14.931 --> 36:16.998 Chair Yang: 26, and 7 at local. 36:16.460 --> 36:18.927 OK, thank you for that clarification. 36:21.804 --> 36:24.804 But she has just recently announced her retirement. Well deserved ... 36:23.606 --> 36:26.606 Barbara Arnwine: Not retirement, but I'm leaving the 36:26.409 --> 36:27.609 Lawyers Committee. 36:26.913 --> 36:29.913 Chair Yang: OK, not retirement, but her next phase, 36:30.378 --> 36:33.245 and we certainly appreciate your joining us 36:33.047 --> 36:35.047 for this important discussion. 36:34.615 --> 36:37.615 Barbara Arnwine: Well, thank you so much, Chairman Yang, 36:38.420 --> 36:41.420 and thanks to all the Commissioners for this great hearing and 36:41.825 --> 36:44.758 for this celebration of the 50th year of the 36:45.159 --> 36:47.826 Equal Employment Opportunity Commission, 36:47.329 --> 36:50.129 an organization I talk about all the time, 36:50.465 --> 36:53.465 and as everyone knows the Lawyers Committee just celebrated 36:53.936 --> 36:56.269 our 50th anniversary two years ago. 36:59.169 --> 37:02.169 So we have a lot in common as we fought to advance 37:02.474 --> 37:04.474 our society's racial equality. 37:06.315 --> 37:09.315 I also want to say that in thinking about this whole problem, 37:11.724 --> 37:13.924 Dr. Spriggs has talked about this 37:14.986 --> 37:17.786 rate of unemployment of blacks and whites, 37:18.860 --> 37:21.860 and how it has stayed doubled now for decades, 37:23.999 --> 37:26.999 and the different underlying factors for that. 37:30.166 --> 37:33.166 The sad fact is that explicit discrimination that has existed for decades, 37:34.242 --> 37:37.242 when state statutes and union rules expressly excluded 37:36.511 --> 37:39.311 African-Americans from many opportunities, 37:40.386 --> 37:43.386 has been supplemented by a new and enhanced set of barriers 37:44.653 --> 37:47.653 to employment for African-Americans and other disadvantaged groups. 37:48.492 --> 37:51.492 These added barriers range from a simple double standard 37:52.861 --> 37:55.861 in the eyes of hiring managers, the new focus on implicit bias, 37:59.502 --> 38:02.502 the unconscious bias that results in African-Americans 38:02.839 --> 38:05.839 and others being excluded from equal opportunity. 38:08.109 --> 38:10.576 To new examples of explicit criteria, 38:10.479 --> 38:12.612 like criminal background checks, 38:13.783 --> 38:16.716 credit background checks, unemployment bias, 38:16.919 --> 38:19.786 and entry level tests of various abilities, 38:20.422 --> 38:23.022 many of which have a devastating impact 38:24.097 --> 38:27.097 to deprive African-Americans of equal opportunity to obtain jobs 38:26.722 --> 38:28.655 and advance in their careers. 38:30.396 --> 38:33.263 Furthermore, an area we really want to call 38:34.569 --> 38:37.569 to the Commission's attention is that these barriers 38:39.508 --> 38:42.175 are compounded when you add gender bias. 38:42.841 --> 38:45.508 The intersectionality of race and gender 38:48.384 --> 38:51.384 is a growing problem and is one that really requires 38:52.887 --> 38:55.487 further guidance and further expression 38:58.326 --> 39:00.726 and deliberation by this Commission. 39:02.464 --> 39:05.331 We have all seen these match paired studies 39:06.169 --> 39:09.169 where, you know, a white candidate with a felony record 39:11.905 --> 39:14.905 is interviewed before anyone will even talk to 39:14.943 --> 39:17.210 an African-American applicant with 39:16.912 --> 39:19.512 a completely clean criminal background. 39:20.083 --> 39:23.083 Similar studies show when résumés are carefully matched 39:23.184 --> 39:25.384 in all respects except for names, 39:24.954 --> 39:27.954 the applicants with names common in the white community, 39:28.523 --> 39:31.523 Ashley or Jennifer, get far more invitations to interview 39:31.860 --> 39:34.860 than applicants with names such as Tamika or Latosha, 39:36.204 --> 39:39.204 names commonly given to children in African-American families. 39:40.969 --> 39:43.302 But we also see in our Census case, 39:44.139 --> 39:47.139 that the Lawyers Committee has been litigating now 39:46.973 --> 39:48.440 for a couple of years, 39:49.143 --> 39:52.010 we also see how criminal background records 39:51.879 --> 39:53.812 really have horrible effects. 39:54.187 --> 39:57.187 And in a case that, in this case evidence revealed that 40:00.754 --> 40:03.354 between 850,000 to 1 million applicants 40:04.686 --> 40:06.419 who had FBI arrest records 40:06.496 --> 40:09.496 were diverted into a separate screening process 40:09.503 --> 40:12.036 where fewer than 1 percent were hired. 40:13.135 --> 40:16.135 Of those diverted, nearly 40 percent of the applicants 40:16.469 --> 40:17.936 were African-American, 40:19.542 --> 40:22.542 even though about 20 percent of all African-Americans 40:23.014 --> 40:25.347 were in the pool of all applicants. 40:26.716 --> 40:29.716 Statistical analysis confirms that these percentages discriminate... 40:30.050 --> 40:33.050 demonstrate a disparate impact not only on African-Americans 40:34.656 --> 40:37.656 but also on Latino applicants, and as I spoke of in my testimony 40:39.500 --> 40:42.500 you can see that right now we have a class certified 40:44.966 --> 40:47.433 of about 600,000 people in that case. 40:47.068 --> 40:49.735 And what's tragic about the case is that 40:49.604 --> 40:51.537 it is probably at this moment 40:52.108 --> 40:55.108 the largest racial class action in the country, 40:56.444 --> 40:58.711 but it does speak to this problem. 40:59.616 --> 41:02.549 I mentioned this issue of intersectionality, 41:03.485 --> 41:06.285 Professor Kim Crenshaw, Kimberle Crenshaw, 41:06.855 --> 41:09.855 has done a great job of trying to have us look at it. 41:11.728 --> 41:14.461 I recall that in 1995, I did a conference 41:14.891 --> 41:17.358 on African-American women in the law, 41:16.698 --> 41:18.631 and this was the focus of it, 41:18.866 --> 41:20.933 and here we are 20 years later, 41:22.171 --> 41:25.038 and we still have not really made progress, 41:25.041 --> 41:27.841 from DeGraffenreid and all the other cases 41:28.942 --> 41:30.409 where if you're black, 41:34.050 --> 41:37.050 you're treated differently as a black woman than black men. 41:39.660 --> 41:42.660 If you're a black woman you're also treated differently than white women. 41:43.522 --> 41:46.522 And that the particularization of your discrimination 41:45.993 --> 41:47.526 is not being addressed, 41:47.830 --> 41:50.830 and we also know these are the same issues for Latinas, 41:53.442 --> 41:56.442 and the same issues for Asian women, and Native American women. 41:58.306 --> 42:01.306 And we really think this is one area where the EEOC 42:01.743 --> 42:03.610 really should be looking at, 42:03.878 --> 42:06.211 given our current state of the law, 42:06.284 --> 42:09.284 given all these problems with addressing multiple factors, 42:11.421 --> 42:14.421 we really think that this is an area calling for absolute guidance. 42:15.085 --> 42:16.218 So in conclusion, 42:19.796 --> 42:22.796 you continue to play a critical role in our country's quest 42:24.759 --> 42:25.626 for equality. 42:26.466 --> 42:29.466 We can't get there without active intervention strategies, 42:29.738 --> 42:32.271 and we call upon you to continue to do 42:31.539 --> 42:33.806 the great work that you are doing, 42:35.147 --> 42:38.147 and to look to our sector that is the civil rights community 42:42.850 --> 42:45.850 as allies, as experts, and as people who are willing to help 42:47.489 --> 42:49.689 in making sure that we, together, 42:50.658 --> 42:53.525 can really build a society that we deserve. 42:54.299 --> 42:54.966 Thank you. 42:53.128 --> 42:55.995 Chair Yang: Thank you so much, Ms. Arnwine. 42:55.498 --> 42:58.298 Now we'll hear from Victoria Mesa-Estrada, 42:58.634 --> 43:01.634 a partner in the Palm Beach County firm of Mesa & Coe. 43:00.969 --> 43:03.169 Thank you so much for joining us. 43:01.436 --> 43:04.436 Victoria Mesa-Estrada: Good morning Commissioner, 43:04.773 --> 43:07.773 and all the Commissioners, Deputy General Counsel, 43:07.075 --> 43:10.075 thank you very much for this opportunity to speak today 43:10.010 --> 43:11.610 on this important issue. 43:12.213 --> 43:14.680 For me this is a very personal topic, 43:13.749 --> 43:16.482 not only because I'm an immigrant myself, 43:16.822 --> 43:19.022 I'm a woman, but I'm also Latina, 43:19.354 --> 43:22.354 and I'm so grateful for having the opportunity to address you 43:22.657 --> 43:25.657 in this place, in Miami, and this is the perfect place 43:26.995 --> 43:29.995 to have this conversation. We are, this tricounty area, 43:30.365 --> 43:32.298 it's a potpourri of cultures, 43:33.936 --> 43:36.669 of social values, of differing religions, 43:36.335 --> 43:38.735 I mean you can find everything here, 43:38.171 --> 43:41.038 so it would take me an entire week at least 43:40.843 --> 43:43.843 to really address everything that I want to say 43:43.682 --> 43:45.882 and that I share in my testimony. 43:45.918 --> 43:48.185 But I really wanted to focus today 43:48.017 --> 43:51.017 just on the three main points that really are important, 43:50.485 --> 43:53.485 and that I bring from the field as an attorney, 43:53.292 --> 43:56.292 as an organizer for many years with the Latino community, 43:57.057 --> 43:58.857 and as an immigrant myself. 43:58.761 --> 44:01.428 First I would like to address the issues 44:01.663 --> 44:03.730 related to agricultural workers 44:04.566 --> 44:07.566 and the barriers that they face with discrimination. 44:08.139 --> 44:11.139 As you know, it's no secret that the Hispanic workers 44:10.706 --> 44:13.706 are the majority of the workforce in agriculture. 44:16.845 --> 44:19.845 We also know that the majority of them either are undocumented or, 44:20.183 --> 44:23.183 because migration patterns have really changed, 44:23.756 --> 44:26.756 and companies now, employers are having the preference 44:26.692 --> 44:28.292 of hiring guest workers, 44:28.756 --> 44:30.356 we also have that mix of 44:30.158 --> 44:33.158 undocumented workers and guest workers in agriculture, 44:33.562 --> 44:36.495 and that has really opened the Pandora's Box 44:36.865 --> 44:38.532 on discrimination issues. 44:38.603 --> 44:41.603 Let me start with indigenous workers, for example, 44:43.473 --> 44:46.473 there's been a transition where indigenous agricultural workers 44:47.376 --> 44:50.309 are now the domestic agricultural workforce, 44:50.912 --> 44:53.912 and you can imagine the problems that they face, 44:54.483 --> 44:57.483 not only ... they are unable to communicate in English, 44:58.419 --> 45:00.819 but they don't speak proper Spanish, 45:00.823 --> 45:03.623 which is usually the most typical language 45:03.625 --> 45:05.425 that is spoken in the field 45:05.996 --> 45:08.996 because the crew leaders in general tend to speak Spanish, 45:08.967 --> 45:11.300 but they speak indigenous dialects, 45:10.603 --> 45:13.603 and that has really made it very difficult for them 45:13.169 --> 45:16.169 because not only can't they really communicate with their employers 45:18.306 --> 45:21.306 but they have been the victims and the targets of discrimination 45:21.878 --> 45:24.878 among their coworkers, whether it's the supervisor, 45:25.715 --> 45:28.715 whether it's the actual employer, farmer himself, 45:31.617 --> 45:34.617 it has created tremendous obstacles for them. 45:35.824 --> 45:38.624 Then you can add the layer of gender. And, 45:38.956 --> 45:41.956 this is where we really have seen an increase of cases 45:43.365 --> 45:46.365 of discrimination on female indigenous farm workers 45:46.699 --> 45:49.699 who are out there, and are really the victims of this rampant 45:52.310 --> 45:55.310 sexual abuse, retaliation, constant hostility against them 45:56.172 --> 45:59.172 for many reasons, and it has really been very difficult for them 46:00.249 --> 46:03.249 to fight for their rights. In their position as undocumented workers 46:03.318 --> 46:06.318 it's very difficult for them to come forward, 46:06.655 --> 46:09.655 complain about being the victims of sexual harassment, 46:11.260 --> 46:14.260 and because they have families, it really has come to that; 46:14.860 --> 46:17.860 they say I need to preserve this job because I need to feed my family, 46:18.866 --> 46:20.399 I'll just deal with it. 46:21.504 --> 46:24.504 Fortunately, there's been great champions out there, 46:23.806 --> 46:26.806 in the field. And one of the cases, for example, 46:26.615 --> 46:29.615 that the Miami District Office is currently litigating, 46:30.213 --> 46:33.213 and I that represent the charging parties, shows that, 46:34.316 --> 46:37.316 a situation where five women were working in a packing house, 46:38.154 --> 46:41.154 and they were being constantly harassed by the employer, 46:41.990 --> 46:44.990 the farmer himself, who managed the packing house. 46:44.293 --> 46:47.293 They were also being harassed by the supervisor, 46:47.628 --> 46:50.628 and on top of that they became victims of rape. 46:52.471 --> 46:55.471 When they try to fight back and tried to stop these abuses 46:56.839 --> 46:59.839 they were fired. It was direct retaliation for them, 47:00.172 --> 47:03.172 for taking the step to fight for their rights. 47:02.943 --> 47:05.476 They went to law enforcement agencies. 47:06.213 --> 47:08.280 They complained about the rape, 47:08.220 --> 47:11.087 they complained about the sexual harassment 47:11.153 --> 47:13.153 that was really a class issue, 47:13.222 --> 47:15.955 because every woman at that packing house 47:15.652 --> 47:17.252 at some point or another 47:16.658 --> 47:19.125 had been the victim of this harassment. 47:18.796 --> 47:21.796 And regardless of what they did, it just kept happening. 47:20.596 --> 47:29.604 Fortunately, there was one legal services organization 47:29.004 --> 47:31.671 here in Florida, that could assist them. 47:30.977 --> 47:33.444 I used to work for that organization, 47:33.208 --> 47:34.741 Florida Legal Services, 47:33.871 --> 47:36.538 the Migrant Farmworkers Justice Project. 47:36.610 --> 47:39.610 I say fortunately, now, it's an unfortunate thing, 47:39.915 --> 47:42.915 because legal service organizations, they're really 47:44.786 --> 47:47.786 in straights of money, we are letting people go all the time. 47:47.623 --> 47:50.356 I was recently laid off from my position, 47:50.225 --> 47:53.158 despite being the only attorney in the field 47:52.560 --> 47:54.960 working on sexual harassment issues. 47:55.298 --> 47:58.298 So it tells you the challenges that are coming ahead, 47:57.300 --> 47:59.300 and this is why I shared that. 47:58.868 --> 48:01.868 But in the case that I shared for Moreno Farms, 48:04.002 --> 48:07.002 the victims were put in touch with us, with our agency, 48:08.343 --> 48:11.343 we were able to file the charges, tried to move the ball forward. 48:13.983 --> 48:16.983 Fortunately the District Director in the Miami office was able to, 48:16.288 --> 48:18.755 despite the limited resources he had, 48:18.850 --> 48:21.850 he was able to accommodate two of his investigators 48:21.391 --> 48:24.391 who spoke Spanish to come and interview my clients 48:25.761 --> 48:28.761 in a very short time. That, for us, is quite commendable, 48:28.300 --> 48:31.300 the fact that the Miami office really moved fast 48:32.607 --> 48:35.140 to address this issue with my clients. 48:37.005 --> 48:40.005 Unfortunately then the process took forever, but we are here, 48:41.110 --> 48:44.110 and we're moving forward. The Regional Attorney, 48:44.179 --> 48:47.179 fortunately they're litigating the case on behalf of the clients 48:47.516 --> 48:50.516 and hopefully we'll find a resolution that will dictate 48:50.585 --> 48:53.585 and send a strong message to the agricultural community 48:54.690 --> 48:57.690 that this cannot be tolerated. And just because these are women 48:57.759 --> 49:00.759 and because they have no they papers, it doesn't mean that 48:59.961 --> 49:02.028 we're not going to act on that. 49:02.365 --> 49:05.365 I wanted to touch very briefly on the guest worker problem. 49:03.632 --> 49:06.632 Chair Yang: Unfortunately we are out of time, 49:06.202 --> 49:09.202 but we will make sure to ask you some questions, 49:08.237 --> 49:11.237 so that you can have a chance to answer that. 49:10.939 --> 49:12.272 Thank you very much. 49:11.840 --> 49:14.840 Now, we will hear from Dr. Kathleen Lundquist. 49:15.477 --> 49:18.410 She is the President and CEO of APT Metrics, 49:18.748 --> 49:21.748 and an expert organizational psychologist. Thank you -- 49:20.546 --> 49:23.546 Dr. Kathleen Lundquist: Thank you Chair Yang, 49:23.618 --> 49:26.618 and Commissioners Barker, Feldblum, Lipnic and Burrows. 49:26.689 --> 49:29.689 Good morning and thank you for the opportunity 49:29.758 --> 49:32.758 to share my perspective as an organizational psychologist, 49:33.090 --> 49:36.090 somebody who spends their time trying to match people to jobs 49:36.163 --> 49:37.363 and assess skills. 49:38.165 --> 49:40.698 One of the things that we have noticed 49:40.702 --> 49:43.502 in our work of late is that candidates are 49:44.844 --> 49:47.844 increasingly being screened by online technology, 49:48.444 --> 49:51.444 online applications, some of which when a candidate 49:51.513 --> 49:54.513 enters responses to some very initial questions 49:56.385 --> 49:59.385 in the application may disqualify them from further consideration. 49:59.955 --> 50:02.955 Biodata and personality measures which are widely used, 50:02.525 --> 50:05.525 and may be administered to thousands of candidates, 50:06.626 --> 50:09.626 again which may screen them out without even being involved 50:10.199 --> 50:13.199 in any human contact. Responses to interview questions, 50:12.569 --> 50:15.236 which are increasingly being videotaped, 50:15.536 --> 50:17.803 so that there is not even a person 50:18.140 --> 50:21.140 that is interviewing the candidates, but rather that's just 50:20.710 --> 50:23.443 a videotape that's being uploaded online, 50:23.346 --> 50:25.746 and it's used as a screening device, 50:25.513 --> 50:27.780 and even online background checks, 50:27.852 --> 50:30.852 huge volumes of applicants are being screened this way. 50:34.256 --> 50:37.256 And as a result, employers have found it to be a very cost-effective 50:37.090 --> 50:40.090 manner of screening huge numbers of candidates, 50:40.529 --> 50:43.396 but the problem that we see is that there's 50:42.865 --> 50:44.932 very little validation evidence 50:44.467 --> 50:47.000 for many of the steps in this process. 50:47.570 --> 50:50.570 Criminal background checks are but one good example 50:52.942 --> 50:55.942 of where a selection procedure that has huge adverse impact 50:57.646 --> 50:59.779 also is not very often, if ever, 50:59.852 --> 51:02.852 subjected to any kind of validation evidence. 51:03.952 --> 51:06.952 What I wanted to bring to your attention, however, 51:06.685 --> 51:09.018 is that despite all this technology 51:08.056 --> 51:10.789 and some of the concerns that may happen, 51:10.359 --> 51:13.359 there is a way to use this for the greater good. 51:14.363 --> 51:16.696 Increasingly our research has shown 51:16.765 --> 51:19.765 that there are selection procedures which can be made in ways 51:19.833 --> 51:21.300 that simulate the job, 51:22.638 --> 51:25.638 so that a candidate who is seeking to be employed 51:26.743 --> 51:29.743 can actually demonstrate in a much more realistic fashion 51:29.547 --> 51:32.547 what they would do and how they would perform on the job, 51:34.177 --> 51:37.177 things like managerial inbaskets or even simulations 51:40.055 --> 51:43.055 of a fictitious manufacturing system for manufacturing workers, 51:43.192 --> 51:46.125 all allow candidates to show their skill-set 51:48.130 --> 51:50.730 in a way that enhances their acceptance 51:52.601 --> 51:55.601 that this is, in fact, a reasonable basis on which to be evaluated 51:56.706 --> 51:59.706 and best of all, it showed reduced adverse impact. 52:00.543 --> 52:03.543 Over the past 50 years, researchers in our field 52:03.249 --> 52:05.316 have continued to identify ways 52:06.177 --> 52:09.177 to change what we measure, how we measure it, 52:09.751 --> 52:12.751 and how we use those results in attempts to reduce 52:12.654 --> 52:15.321 adverse impact. That kind of information 52:16.659 --> 52:19.659 then has helped us to design selection procedures 52:18.964 --> 52:21.964 that will minimize the amount of adverse impact 52:21.559 --> 52:24.026 against racial and ethnic minorities. 52:23.330 --> 52:26.330 I'd like to share with you a little bit about 52:26.799 --> 52:27.866 what we measure. 52:28.970 --> 52:31.970 Much of this research has focused on cognitive abilities testing, 52:31.778 --> 52:34.778 because that's the research that has shown the largest differences 52:35.377 --> 52:38.377 between whites and African-American or Latino candidates, 52:38.711 --> 52:41.711 but the research has also shown that cognitive abilities tests 52:41.014 --> 52:44.014 can be very effective in predicting who will be a 52:43.918 --> 52:46.051 successful performer on the job. 52:46.121 --> 52:49.121 What has been most interesting is recent research 52:49.718 --> 52:52.718 showing how to reduce or eliminate the amount 52:52.528 --> 52:55.528 of adverse impact associated with cognitive abilities tests. 52:56.365 --> 52:59.365 So rather than throwing that out as a predictor, 52:58.100 --> 53:00.433 it's possible to use that predictor 53:01.632 --> 53:04.632 in ways that allow racial and ethnic minorities 53:05.472 --> 53:08.472 to show their skill-sets at an equal level with white 53:08.208 --> 53:09.741 or majority candidates. 53:11.312 --> 53:14.045 They interestingly predict such things as 53:15.009 --> 53:18.009 your ability to multitask, your ability to stay focused 53:17.815 --> 53:20.548 despite distractions, all kinds of things 53:20.620 --> 53:23.620 that are increasingly becoming important in the workplace. 53:25.486 --> 53:28.486 In terms of noncognitive skills, that's been another area of great interest, 53:29.991 --> 53:32.991 particularly personality, integrity, and emotional intelligence testing. 53:34.359 --> 53:37.359 Those tests showed small to no racial and ethnic group differences, 53:37.999 --> 53:40.932 and we're seeing them used quite effectively 53:40.501 --> 53:43.501 to reduce adverse impact for racial and ethnic minorities. 53:45.024 --> 53:47.824 There are some potential challenges there, 53:51.212 --> 53:54.212 given concerns about people who may have mental disabilities 53:54.816 --> 53:57.816 and I certainly hope that's something you will consider addressing. 53:59.420 --> 54:02.420 How we measure has been important as well, that includes 54:02.689 --> 54:05.689 using these kinds of simulations that I talked about before, 54:07.061 --> 54:10.061 that candidates are most interested in participating in, 54:10.131 --> 54:13.131 they feel engaged, they don't feel the reading demands 54:13.834 --> 54:16.701 and the other kinds of demands of the test, 54:15.766 --> 54:18.233 as opposed to the demands of the job, 54:18.806 --> 54:21.806 are what will be the basis for their evaluation. 54:22.909 --> 54:25.909 We've also found some very interesting opportunities 54:25.480 --> 54:28.213 to use structured interviews in new ways, 54:29.050 --> 54:32.050 where we tape the responses, audiotape the responses 54:31.385 --> 54:33.652 to structured interview questions, 54:34.989 --> 54:37.989 and ask one panel to rate the responses to question one, 54:37.190 --> 54:39.523 a different panel for question two, 54:38.858 --> 54:41.325 a different panel for question three. 54:43.196 --> 54:46.196 In all of this, I guess what I think most importantly 54:46.366 --> 54:49.366 you should consider is that it's not the technique, 54:50.204 --> 54:53.204 it's not what you measure, but it's the interaction of those two things, 54:53.541 --> 54:56.541 much like the intersectionality that was talked about before, 54:57.378 --> 55:00.378 that is important when you look at a less adverse alternative. 55:01.548 --> 55:04.548 And on a hopeful note the kinds of things that we're finding 55:04.519 --> 55:06.319 are important to jobs today 55:06.153 --> 55:09.153 and the ways we can measure them have great promise 55:08.656 --> 55:11.456 for reducing adverse impact going forward. 55:11.525 --> 55:14.525 So I encourage you to think about that. Thank you. 55:13.556 --> 55:15.556 Chair Yang: Thank you so much. 55:15.628 --> 55:18.628 It's now my pleasure to introduce Robert Weisberg, 55:19.199 --> 55:22.199 our Regional Attorney of the Miami District Office. 55:21.134 --> 55:24.134 Robert Weisberg: Good morning, good morning and thank you, 55:24.736 --> 55:27.736 Chair and Commission for inviting me to testify today. 55:29.476 --> 55:32.476 I think at the 50th anniversary of the Civil Rights Act, 55:33.483 --> 55:36.483 it really calls us to really ask the extent to which race 55:36.918 --> 55:39.918 continues to be a factor, play a role in our society 55:39.718 --> 55:41.451 in unemployment decisions. 55:43.590 --> 55:46.590 And I think the answer to that question is an emphatic yes. 55:48.662 --> 55:50.929 Since I was asked to testify here, 55:49.993 --> 55:52.993 I didn't know exactly what I was going to say 55:54.067 --> 55:57.067 but certain events that were reported in the South Florida news media 55:57.140 --> 56:00.140 really provided the framework for one of the things 55:58.743 --> 56:01.676 I really want to say and which I wrote about 56:01.745 --> 56:03.212 in my written remarks. 56:03.243 --> 56:06.043 Three incidents that have been reported in 56:05.841 --> 56:07.841 the last three months, I think 56:09.683 --> 56:12.683 just sort of underscore how significant race continues to be 56:13.087 --> 56:16.020 in our society and in the workplace setting, 56:16.090 --> 56:19.090 and I also want to point out that these incidents weren't -- 56:19.927 --> 56:22.927 I didn't spend hours on the Internet searching through obscure websites 56:21.993 --> 56:24.993 to find them. They were reported in the Miami Herald, 56:25.266 --> 56:28.066 the Sun Sentinel, on the local news media. 56:31.401 --> 56:34.401 The first one which was reported in late March of 2015, 56:34.207 --> 56:37.207 the Fort Lauderdale Police Department announced 56:37.779 --> 56:40.779 that they had fired three police officers and a fourth had resigned 56:42.916 --> 56:45.916 for writing vile racist text messages filled with racial slurs 56:47.021 --> 56:50.021 and violent language including repeated references to killing niggers. 56:50.622 --> 56:53.622 One of the officers also made a video filled with racial slurs. 56:55.465 --> 56:58.465 The local NAACP asked the Department of Justice to investigate 56:59.305 --> 57:02.305 but that was, again, widely reported locally. 57:03.670 --> 57:06.670 A second incident involved the March 2015 firing 57:08.308 --> 57:11.308 of a Univision TV host for comparing Michelle Obama 57:11.643 --> 57:12.310 to an ape. 57:12.382 --> 57:15.382 And as reported by theMiami Herald, this scandal generated 57:18.019 --> 57:21.019 a significant debate about race among Latinos. 57:21.620 --> 57:24.620 And the Miami Herald quoted a professor at the University of Miami, 57:27.494 --> 57:30.494 Dr. Michelle Gonzalez Moldanado as saying, "in the U.S. the idea of race 57:31.497 --> 57:34.497 is very black and white, but the reality of race 57:34.568 --> 57:37.568 is much more complex in Latin American countries." 57:39.572 --> 57:41.905 And Dr. Maldonado further said that 57:41.737 --> 57:44.737 "This does not mean there is not racism, there is, 57:46.855 --> 57:49.855 but it's a type of hierarchy" which she described as "pigmentocray." 57:50.312 --> 57:53.312 This scandal also generated debates about diversity 57:54.921 --> 57:57.921 in the Spanish language media, and Mekahlo Medina, who is 57:59.259 --> 58:02.259 the president of the National Association of Hispanic Journalists stated, 58:03.096 --> 58:06.096 and this is a quote, that "Latino journalists should not ignore 58:05.929 --> 58:08.929 the blatant racism that exists in our communities 58:10.537 --> 58:13.537 and in our newsrooms" and questioned how many 58:17.107 --> 58:20.107 Afro-Latino anchors are seen in Latin and Spanish language newscasts. 58:21.916 --> 58:24.716 A third incident that was reported widely, 58:24.419 --> 58:26.486 at the very beginning of April, 58:28.093 --> 58:31.093 involved United States District Judge Marcia Cook. 58:32.960 --> 58:35.960 Judge Cook is the first female African-American appointed 58:35.729 --> 58:37.996 to a federal judgeship in Florida. 58:38.599 --> 58:41.332 Judge Cook resides at Bay Harbor Islands, 58:41.902 --> 58:44.902 in a condominium which is about 12 miles from here. 58:45.305 --> 58:47.238 And as reported in the press, 58:47.403 --> 58:49.803 one morning she was dressed for work 58:50.377 --> 58:53.377 in her professional attire, was on her way to her car 58:53.949 --> 58:56.949 to drive to work and was approached by a candidate 58:57.216 --> 58:58.749 for local town council. 58:59.654 --> 59:02.654 This candidate approached Judge Cook, and asked her 59:05.555 --> 59:08.555 "What family do you work for?" The candidate later said 59:09.897 --> 59:12.897 he regretted his remarks, but he assumed she was a housekeeper. 59:19.337 --> 59:22.337 I think this underscores then that race continues to be a factor 59:23.075 --> 59:25.142 in the South Florida community, 59:25.715 --> 59:28.715 and the South Florida community is not alone. 59:29.577 --> 59:32.577 In my written testimony, I've outlined some of the work we've done, 59:33.154 --> 59:36.154 and with the time constraint I can't get into that, 59:36.389 --> 59:39.389 but I really want to point out two recommendations 59:38.857 --> 59:40.924 that I feel real strongly about 59:39.727 --> 59:42.727 while I have the opportunity to speak to all five of you 59:42.861 --> 59:43.994 at the same time. 59:47.902 --> 59:50.902 I don't think we can underscore how important the Priority Number 1 59:50.974 --> 59:53.974 of the Strategic Enforcement Plan is, to do our job, 59:55.411 --> 59:58.411 that hiring, barriers to hiring, to recruitment, 00:59:59.451 --> 01:00:02.251 and I would add promotion, is an area that 01:00:03.077 --> 01:00:05.344 we are in a unique position to do. 01:00:05.417 --> 01:00:08.417 And I say this from my private practice experience, 01:00:08.455 --> 01:00:10.722 for 25 years people would come in, 01:00:11.091 --> 01:00:14.091 they knew something happened, like they came in with a great résumé, 01:00:14.163 --> 01:00:17.163 and when they showed up and they realized they were black 01:00:16.229 --> 01:00:18.962 and everything didn't work out right, but 01:00:19.032 --> 01:00:22.032 they didn't know who was hired, they didn't know who made the decision, 01:00:26.206 --> 01:00:29.206 and I think we should emphasize even more at the investigative level, 01:00:30.278 --> 01:00:33.278 and when it's appropriate, litigation, to really ferret that out 01:00:34.381 --> 01:00:37.381 since we have the tools to be able to find out 01:00:37.716 --> 01:00:40.716 what actually is going on that the private bar can't, 01:00:41.022 --> 01:00:44.022 coupled with the challenges of arbitration agreements 01:00:44.625 --> 01:00:47.625 and the challenges of Rule 23. So, that's something I think 01:00:49.095 --> 01:00:52.095 ought to be even more of an emphasis than it is already. Thank you. 01:00:51.032 --> 01:00:53.365 Chair Yang: Thank you so much, Bob. 01:00:53.202 --> 01:00:55.669 We now welcome Iliana Castillo-Frick. 01:00:54.974 --> 01:00:57.974 We want to thank you again for hosting us here, 01:00:58.004 --> 01:01:00.804 she's the Vice Provost for Human Resources 01:01:00.806 --> 01:01:02.339 for Miami-Dade College. 01:01:02.410 --> 01:01:05.410 Iliana Castillo-Frick: Thank you, Chair Yang, 01:01:06.749 --> 01:01:09.749 and distinguished Commissioners Barker, Burrows, Feldblum and Lipnic. 01:01:10.818 --> 01:01:13.685 As the Vice Provost for Miami-Dade College, 01:01:14.993 --> 01:01:17.260 I welcome you to Miami and to MDC. 01:01:18.121 --> 01:01:21.121 MDC is a community college created with the idea 01:01:21.962 --> 01:01:24.962 that anyone with a desire to get a college degree 01:01:24.797 --> 01:01:26.997 should be given that opportunity, 01:01:27.335 --> 01:01:30.335 and currently we are the largest institution of higher learning 01:01:30.369 --> 01:01:32.369 in the nation. In my capacity, 01:01:33.708 --> 01:01:36.708 I'm responsible for all functions of human resources college-wide, 01:01:38.814 --> 01:01:41.814 including our efforts to build our diverse and inclusive workforce. 01:01:42.086 --> 01:01:44.886 I appear before you today on behalf of the 01:01:44.785 --> 01:01:47.718 Society for Human Resource Management, SHRM, 01:01:48.051 --> 01:01:51.051 where I have been an active member since 1985. 01:01:50.356 --> 01:01:53.356 I have also been a board member of HR Florida, 01:01:54.265 --> 01:01:56.065 and the Greater Miami SHRM, 01:01:56.664 --> 01:01:59.664 where I served as diversity advocate, community affairs director, 01:01:59.732 --> 01:02:01.199 and chapter president. 01:02:01.165 --> 01:02:03.765 SHRM members are committed to promoting 01:02:04.072 --> 01:02:07.072 diversity and inclusion strategies in the workplace. 01:02:08.709 --> 01:02:11.442 And according to a 2014 SHRM survey data, 01:02:13.076 --> 01:02:16.076 more than half of HR professionals say their recruiting strategies 01:02:17.918 --> 01:02:20.918 are designed to help increase diversity in their organizations 01:02:22.491 --> 01:02:24.758 and implementing such initiatives. 01:02:26.626 --> 01:02:29.626 SHRM includes D and I as a key part of the HR body 01:02:30.463 --> 01:02:33.463 of competence and knowledge upon which our professional certification 01:02:33.868 --> 01:02:36.868 is based. Today I would like to discuss with you 01:02:37.705 --> 01:02:40.705 the importance of addressing barriers to employment and advancement 01:02:41.808 --> 01:02:44.808 based on race, national origin and color, by focusing on 01:02:45.908 --> 01:02:48.908 my experience with diversity and inclusion initiatives, 01:02:49.984 --> 01:02:52.984 and why I believe that D and I is a critical focus 01:02:55.622 --> 01:02:58.622 for employers beyond compliance with equal employment opportunity laws. 01:02:59.593 --> 01:03:02.593 I also identify some challenges that I have encountered 01:03:03.165 --> 01:03:06.165 and share some thoughts on how to address those challenges. 01:03:07.033 --> 01:03:09.766 First, I wish to address the relationship 01:03:10.868 --> 01:03:13.868 between diversity and inclusion policies and practices on one hand, 01:03:15.208 --> 01:03:18.208 and the separate and distinct equal employment opportunity 01:03:17.778 --> 01:03:20.778 and affirmative action compliance on the other. 01:03:21.812 --> 01:03:24.812 The mixing of these issues relates back to the historical evolution 01:03:24.883 --> 01:03:27.883 of these complimentary yet distinct concepts. 01:03:29.991 --> 01:03:32.991 EEO laws focused on fairness and nondiscrimination in employment decisions 01:03:32.625 --> 01:03:35.292 and most employers have written policies 01:03:35.629 --> 01:03:38.629 that address their organization's commitment. 01:03:40.234 --> 01:03:43.234 EEO and affirmative action are primarily matters of legal compliance, 01:03:44.105 --> 01:03:47.105 although they do help to create a workplace that is 01:03:46.941 --> 01:03:49.941 more supportive of all people and more diverse. 01:03:51.017 --> 01:03:54.017 In fact, early diversity programs grew out of companies' 01:03:54.447 --> 01:03:56.847 EEO and affirmative action programs. 01:03:56.984 --> 01:03:59.917 While modern concepts of diversity, however, 01:04:00.754 --> 01:04:03.754 have evolved beyond compliance driven efforts around 01:04:03.988 --> 01:04:06.988 nondiscrimination and the narrow focus on protected classes 01:04:08.595 --> 01:04:11.595 and instead aimed at realizing competitive advantage 01:04:12.967 --> 01:04:15.967 in business opportunities, a well designed D and I policy 01:04:18.339 --> 01:04:21.339 will align directly with the organization's key business objectives. 01:04:21.909 --> 01:04:24.909 Employers voluntarily establishing those policies 01:04:27.148 --> 01:04:30.148 for a variety of reasons do it with a desire to attract 01:04:30.217 --> 01:04:33.217 the best talent to contribute to the organization 01:04:33.923 --> 01:04:36.790 and build a globally competitive workforce. 01:04:37.630 --> 01:04:40.630 In my experience, voluntary diversity efforts are to be 01:04:41.491 --> 01:04:44.491 encouraged and foster. And by fostering a culture 01:04:45.131 --> 01:04:48.131 of diversity and inclusion organizations will attract and retain 01:04:49.067 --> 01:04:50.934 the highest level of talent. 01:04:52.009 --> 01:04:55.009 Creating diversity and inclusive workplace is not without challenges. 01:04:54.574 --> 01:04:57.574 One internal challenge faced by organizations 01:04:58.942 --> 01:05:01.942 is change management, and each organization has a maximum rate 01:05:02.347 --> 01:05:05.014 at which it can process cultural change. 01:05:05.320 --> 01:05:08.320 This depends on the organization's cultural competence 01:05:09.054 --> 01:05:12.054 and the magnitude of the gap between the current situation 01:05:13.329 --> 01:05:16.129 and the diversity initiative's objectives. 01:05:18.266 --> 01:05:21.266 Change management for voluntary diversity programs may occur in phases, 01:05:21.665 --> 01:05:24.598 while workplace diversity can yield benefits 01:05:25.940 --> 01:05:28.940 and innovation and group decisions, it also requires 01:05:29.610 --> 01:05:32.010 understanding and respect of others. 01:05:34.346 --> 01:05:36.413 In simple terms, we like people 01:05:37.250 --> 01:05:40.250 from our own groups more than people from other groups. 01:05:40.321 --> 01:05:43.321 It's a fact, that's the way, unfortunately, people are 01:05:42.956 --> 01:05:45.889 and this can lead to dysfunctional behavior, 01:05:46.459 --> 01:05:49.459 such as incivility and biased decision-making, 01:05:50.564 --> 01:05:53.564 Employees and managers, however, can disrupt that process 01:05:56.072 --> 01:05:59.072 and enable positive interpersonal dynamic in several ways. 01:06:01.207 --> 01:06:04.207 I want to address one thing that I thought was important, 01:06:03.843 --> 01:06:06.510 to you, and that's unconscious bias, or, 01:06:12.019 --> 01:06:14.952 as I've seen it also written, unconscious or 01:06:15.721 --> 01:06:17.654 the differences between such. 01:06:17.726 --> 01:06:20.726 Often skin color and gender and age are generally 01:06:21.329 --> 01:06:24.329 what people think of when they consider biases and 01:06:23.831 --> 01:06:26.831 individuals can harbor unconscious prejudice, 01:06:26.900 --> 01:06:29.900 about many characteristics, but it's important to know 01:06:29.435 --> 01:06:31.702 that sometimes it's not just that, 01:06:32.340 --> 01:06:35.340 it can be the way people see someone's height, weight, 01:06:37.181 --> 01:06:40.181 what school they went to, what school they didn't go, 01:06:42.315 --> 01:06:45.315 what sports they play, and even not as prejudicial, 01:06:44.351 --> 01:06:47.351 but some biases have the halo effect, where that's perfect, 01:06:48.120 --> 01:06:49.653 that person is perfect. 01:06:51.025 --> 01:06:54.025 So effective practices for addressing these are having 01:06:54.595 --> 01:06:57.595 a voluntary diverse program that is flexible. 01:07:02.035 --> 01:07:05.035 And I know that in my statement I have some ideas of such 01:07:04.505 --> 01:07:06.838 that I wanted to share with you ... 01:07:06.439 --> 01:07:09.439 Chair Yang: Thank you, unfortunately we are out of time, 01:07:08.908 --> 01:07:11.241 but we will move to some questions. 01:07:10.310 --> 01:07:12.510 Iliana Castillo-Frick: Thank you. 01:07:11.144 --> 01:07:13.277 Chair Yang: Thank you very much. 01:07:13.413 --> 01:07:16.346 And we will now hear from Donald Livingston, 01:07:16.044 --> 01:07:17.644 a partner at Akin, Gump, 01:07:18.219 --> 01:07:20.952 and a former general counsel of the EEOC. 01:07:21.088 --> 01:07:24.021 Donald Livingston: Good morning, Chair Yang, 01:07:24.557 --> 01:07:27.357 Commissioner Barker, Commissioner Feldblum 01:07:26.597 --> 01:07:29.397 Commissioner Lipnic, Commissioner Burrows, 01:07:30.430 --> 01:07:33.430 Mr. Lee, Mr. Schlageter, good morning to you also. 01:07:35.035 --> 01:07:38.035 Congratulations on the 50th anniversary of the EEOC, 01:07:38.505 --> 01:07:40.838 but now here we sit 50 years later. 01:07:44.510 --> 01:07:47.510 The removal of legal obstacles to equality of opportunity 01:07:49.350 --> 01:07:52.350 has not led to equal results for African-Americans or Hispanics as groups. 01:07:52.820 --> 01:07:55.820 Plainly we don't live in a highly charged racial period 01:07:56.656 --> 01:07:59.656 that typified the world of EEOC's first Commissioners. 01:07:58.959 --> 01:08:01.959 Our businesses, especially those that compete 01:08:02.558 --> 01:08:05.558 on an national or international stage don't shun minorities, 01:08:05.629 --> 01:08:08.629 many have built diversity into their business models, 01:08:08.903 --> 01:08:11.436 understanding its necessity to compete 01:08:12.273 --> 01:08:15.273 in highly competitive markets, and you just heard, I think, 01:08:15.080 --> 01:08:18.080 very good phrasing that diversity programs have moved 01:08:18.179 --> 01:08:21.046 beyond compliance with the law to encompass 01:08:22.415 --> 01:08:25.415 greater business objectives which I will discuss in a second. 01:08:27.521 --> 01:08:30.521 But many of the obstacles that existed in 1965 persist. 01:08:32.660 --> 01:08:35.660 Yesterday's concerns about inferior education and segregated schools 01:08:36.733 --> 01:08:39.733 is today a problem with the decline in the quality of education 01:08:40.067 --> 01:08:43.067 in urban schools, coupled with a decline in relatively 01:08:43.337 --> 01:08:46.137 low skilled traditional middle class jobs. 01:08:47.052 --> 01:08:50.052 Higher level, better paying jobs require higher education 01:08:51.579 --> 01:08:54.579 or specialized skills. Many Hispanics face the additional barrier 01:08:55.416 --> 01:08:58.416 of lack of English language fluency or legal status. 01:08:59.253 --> 01:09:02.253 These obstacles exist outside of the workplace 01:09:03.356 --> 01:09:06.356 but impact workplace decisions. The solutions to them 01:09:06.160 --> 01:09:09.160 if they exist may be beyond employer's reach. 01:09:10.764 --> 01:09:13.764 In my opinion, the following are characteristics of best 01:09:15.902 --> 01:09:18.902 corporate practices to create pathways to equal employment opportunity. 01:09:19.774 --> 01:09:22.774 First, the organizational leadership makes diversity 01:09:22.842 --> 01:09:25.842 a corporate priority, and I think that's some of what you just heard 01:09:27.374 --> 01:09:29.441 about moving beyond compliance. 01:09:30.016 --> 01:09:33.016 That priority is communicated to the organization 01:09:32.884 --> 01:09:34.551 by making a business case 01:09:35.123 --> 01:09:38.123 that explains how diversity enables a company 01:09:37.656 --> 01:09:39.923 to accomplish its strategic goals. 01:09:39.994 --> 01:09:42.994 The business case is based on the simple principle 01:09:43.830 --> 01:09:46.830 that the diversity of individuals and organizations 01:09:48.436 --> 01:09:51.436 creates an environment where innovation and ideas flourish. 01:09:52.473 --> 01:09:55.406 The corporation, for example, has to explain 01:09:56.009 --> 01:09:59.009 that diversity is required to attract and retain 01:09:59.846 --> 01:10:02.846 the best talent, create an environment that fosters innovation, 01:10:04.184 --> 01:10:07.184 promote differing viewpoints to enhance problem solving 01:10:07.214 --> 01:10:08.481 and decision-making 01:10:09.824 --> 01:10:12.824 and develop a positive reputation in its communities. 01:10:14.163 --> 01:10:17.163 Second, a successful corporate program manages diversity, 01:10:16.998 --> 01:10:19.998 that means insisting on job-related practices, 01:10:19.561 --> 01:10:22.561 monitoring the practices for disparate impact, 01:10:22.001 --> 01:10:24.334 and utilizing alternative practices 01:10:24.638 --> 01:10:27.638 where disparate impact can be reduced or eliminated. 01:10:29.078 --> 01:10:31.478 Third, a successful program includes 01:10:32.780 --> 01:10:35.580 informal or formal successorship planning, 01:10:35.243 --> 01:10:37.643 and not just at the executive ranks, 01:10:37.215 --> 01:10:39.948 but at all levels throughout the company, 01:10:40.788 --> 01:10:43.788 to identify persons who are able to be placed 01:10:45.057 --> 01:10:46.857 on pathways to advancement. 01:10:46.760 --> 01:10:49.160 One employer that I'm familiar with, 01:10:50.260 --> 01:10:53.260 even at the district level, at low level jobs, 01:10:54.634 --> 01:10:56.567 creates on-the-bench reports, 01:10:55.764 --> 01:10:58.764 where it identifies persons who are promotion-ready 01:10:58.204 --> 01:11:00.804 with particular emphasis on making sure 01:11:00.972 --> 01:11:02.839 that diversity is recognized 01:11:02.943 --> 01:11:05.676 in those persons who it has on the bench. 01:11:07.782 --> 01:11:10.782 But there's work to be done. In my observation, 01:11:10.483 --> 01:11:13.083 I want to say that the EEOC as a whole, 01:11:12.983 --> 01:11:15.916 is a more competent organization than at any 01:11:15.989 --> 01:11:18.722 time in its history, with few exceptions. 01:11:20.062 --> 01:11:23.062 Moreover, the EEOC appears to proceed purposefully, 01:11:22.395 --> 01:11:24.862 pursuant to a managed strategic plan, 01:11:24.835 --> 01:11:26.902 and this is highly commendable. 01:11:27.033 --> 01:11:30.033 In the past, the agency has seemed more charge driven, 01:11:29.968 --> 01:11:32.235 and as a consequence its practices 01:11:32.572 --> 01:11:35.572 seem less cohesive and its enforcement efforts 01:11:37.178 --> 01:11:40.178 are less coordinated. But of course I do have suggestions. 01:11:40.848 --> 01:11:43.248 Title VII has a conciliatory spirit, 01:11:44.352 --> 01:11:47.352 calling for EEOC to cooperate with state and local agencies, 01:11:46.520 --> 01:11:49.387 conduct educational promotional activities, 01:11:49.990 --> 01:11:52.990 and seek confidential resolutions of cause findings 01:11:55.625 --> 01:11:58.625 through informal methods of conference, conciliation and persuasion. 01:11:59.099 --> 01:12:01.432 Three former General Counsels and I 01:12:01.969 --> 01:12:04.969 made comments to the EEOC on how it might improve 01:12:04.777 --> 01:12:07.777 the quality of its investigations and conciliation. 01:12:07.869 --> 01:12:10.869 Two of the suggestions we made I wish to highlight. 01:12:10.942 --> 01:12:13.942 One is that we believe that some field offices 01:12:14.249 --> 01:12:17.249 in pattern or practice cases where litigation is sought 01:12:21.689 --> 01:12:24.689 push for a waiver of confidentiality and conciliation agreements 01:12:25.789 --> 01:12:28.789 which we think is inconsistent with Title VII. 01:12:31.666 --> 01:12:34.666 And second, that the field offices don't provide adequate information 01:12:36.170 --> 01:12:39.170 to the respondent in order to engage in effective conciliation. 01:12:41.377 --> 01:12:43.510 Chair Yang: Thank you very much. 01:12:42.813 --> 01:12:45.813 Donald Livingston: I refer you to my statement for my other suggestions. 01:12:46.443 --> 01:12:47.110 01:12:46.379 --> 01:12:48.646 Chair Yang: Thanks very much, Don. 01:12:48.681 --> 01:12:50.948 And to all of our panelists today, 01:12:50.516 --> 01:12:53.516 I really thank you for your thoughtful testimony 01:12:53.386 --> 01:12:56.053 and I'd now like to invite my colleagues 01:12:55.622 --> 01:12:58.622 to make any comments they have or ask questions 01:12:58.892 --> 01:13:01.759 to the panelists. Each of the Commissioners 01:13:01.832 --> 01:13:04.565 will have seven minutes to ask questions, 01:13:04.131 --> 01:13:07.131 and then we will have a second round of questions 01:13:06.666 --> 01:13:08.933 that will also last seven minutes. 01:13:09.503 --> 01:13:12.503 And since I know that Dr. Sprigg and Ms. Arnwine 01:13:13.072 --> 01:13:14.805 need to leave about 11:00, 01:13:14.642 --> 01:13:17.642 I thought I might start with a question for you both. 01:13:18.979 --> 01:13:21.979 Dr. Spriggs, I was interested in your testimony 01:13:24.719 --> 01:13:27.719 about the job segregation that continues to exist, 01:13:28.318 --> 01:13:31.318 and that in many ways the progress has stalled since the '80s. 01:13:32.093 --> 01:13:34.626 I was interested in hearing more about 01:13:35.194 --> 01:13:37.194 why you think that is and what 01:13:37.768 --> 01:13:40.768 we can do as an agency, including to hear more about 01:13:40.094 --> 01:13:43.094 the audit studies that you were recommending. 01:13:43.198 --> 01:13:45.398 Dr. Spriggs: Thank you very much, 01:13:44.571 --> 01:13:47.438 and thank you for being mindful of my time, 01:13:47.340 --> 01:13:49.340 and I do apologize about that. 01:13:52.613 --> 01:13:55.213 I think Mr. Weisberg hit on it exactly. 01:13:56.082 --> 01:13:58.549 Many economists actually believe that 01:14:01.389 --> 01:14:03.922 litigation involving incumbent workers 01:14:04.521 --> 01:14:07.521 leads employers to want to respond to not hire, 01:14:06.824 --> 01:14:09.824 out of the threat that if I bring in protected groups 01:14:12.699 --> 01:14:15.699 then I will somewhere down the line face litigation, 01:14:17.833 --> 01:14:20.833 and that's at the hiring point, as Mr. Weisberg said, 01:14:22.142 --> 01:14:25.142 that workers are totally in the blind as to what has happened. 01:14:29.054 --> 01:14:32.054 So I think that the pattern of workplace segregation 01:14:33.153 --> 01:14:36.153 that you see many employers who are not diverse at all 01:14:37.258 --> 01:14:40.258 gives you an indication of a type of hiring discrimination 01:14:41.094 --> 01:14:42.294 that is out there. 01:14:42.838 --> 01:14:45.838 The use of audit studies I think would be very helpful 01:14:49.201 --> 01:14:51.468 in giving you a background number, 01:14:54.342 --> 01:14:57.342 a way of judging how prevalent these barriers are, 01:14:58.039 --> 01:15:00.172 and to understand at which point 01:15:01.012 --> 01:15:04.012 discrimination may enter into the decision. So 01:15:08.889 --> 01:15:11.889 whether you decide to accept having in-person auditors, 01:15:13.359 --> 01:15:15.226 and then follow the process, 01:15:15.561 --> 01:15:18.028 or whether you prefer to use resumes, 01:15:17.897 --> 01:15:20.097 in either of them I think you can 01:15:21.939 --> 01:15:24.939 follow the process and see where -- where the discrimination is. 01:15:25.272 --> 01:15:28.272 Some of it appears very much early on in screening, 01:15:28.774 --> 01:15:30.574 and the economists now know 01:15:31.745 --> 01:15:34.745 that there really was discrimination during this downturn 01:15:34.615 --> 01:15:37.548 against those who were long term unemployed. 01:15:37.518 --> 01:15:40.385 One of the people who did the résumé study, 01:15:41.222 --> 01:15:44.222 sent out a résumé, he was a graduate student, 01:15:43.784 --> 01:15:46.784 so he sent them out at 1:00 o'clock in the morning 01:15:45.526 --> 01:15:48.059 because, of course, as a grad student, 01:15:48.157 --> 01:15:51.157 he had to do his work and start his own research. 01:15:51.030 --> 01:15:53.697 He sent it out at 1:00 a.m. And at 1:05, 01:15:53.601 --> 01:15:56.001 this speaks to how they're screened, 01:15:55.802 --> 01:15:57.802 at 1:05 he got an e-mail back, 01:15:58.303 --> 01:16:00.103 "no, we're not interested." 01:16:01.709 --> 01:16:04.709 So it quickly shows you that they were instantly screened 01:16:06.313 --> 01:16:09.313 out of the process not by a human but by algorithm. 01:16:10.050 --> 01:16:12.183 And so, that kind of information 01:16:13.419 --> 01:16:16.286 you can monitor how is the process working. 01:16:16.090 --> 01:16:19.090 At which point does somebody get an instant no? 01:16:19.894 --> 01:16:22.427 At what point do they get a call back? 01:16:21.629 --> 01:16:23.962 At which point after the call back? 01:16:25.699 --> 01:16:28.699 And this background, I think would be very helpful. 01:16:28.496 --> 01:16:30.496 Chair Yang: Thank you so much. 01:16:30.769 --> 01:16:33.569 Ms. Arnwine, you have done work throughout 01:16:33.107 --> 01:16:36.107 your career on the issue of intersectional discrimination, 01:16:35.576 --> 01:16:37.643 I'm glad you raised that today, 01:16:39.013 --> 01:16:42.013 where we have both gender, race, ethnicity, and other issues, 01:16:43.113 --> 01:16:46.113 and you have suggested additional guidance from the EEOC would be helpful. 01:16:46.420 --> 01:16:49.420 Can you talk about some more about areas in which you think 01:16:49.257 --> 01:16:52.257 additional guidance and clarity could be helpful, 01:16:52.025 --> 01:16:55.025 as well as any other steps the agency could take 01:16:54.622 --> 01:16:57.355 to more effectively address these issues. 01:16:56.163 --> 01:16:58.630 Barbara Arnwine: Well, you know, yes, 01:17:02.536 --> 01:17:05.536 I think that people look at the issue of race and gender 01:17:06.507 --> 01:17:09.374 too simplistically, it's much more nuanced. 01:17:13.681 --> 01:17:16.681 And even within groups, the particularized discrimination 01:17:21.087 --> 01:17:24.087 that black women may experience is not identical 01:17:25.925 --> 01:17:27.925 to what Latinas may experience 01:17:28.398 --> 01:17:30.998 or Asian women or Native American women 01:17:31.097 --> 01:17:34.097 because we're all plagued by different stereotypes 01:17:36.536 --> 01:17:39.469 about our performance, who we are as people, 01:17:39.973 --> 01:17:41.773 our values, our everything, 01:17:44.511 --> 01:17:46.911 and people want to think either that 01:17:47.746 --> 01:17:49.213 all women are the same 01:17:49.150 --> 01:17:52.083 or there are white women and women of color, 01:17:52.513 --> 01:17:54.913 and all women of color are the same, 01:17:56.520 --> 01:17:59.520 and it's just not true. The stereotypes of the BB, 01:18:02.198 --> 01:18:05.131 which I won't iterate regarding black women, 01:18:07.478 --> 01:18:10.145 is very distinctive from the stereotypes 01:18:12.772 --> 01:18:14.505 that people use to really, 01:18:15.870 --> 01:18:18.870 as we were just hearing testimony from Ms. Estrada, 01:18:22.716 --> 01:18:25.249 to really plague women who are Latina. 01:18:26.355 --> 01:18:29.088 We may see some of the same exploitation. 01:18:30.190 --> 01:18:33.190 We may see some of the same detrimental effects, 01:18:35.327 --> 01:18:37.794 but we still, but it's not identical. 01:18:38.397 --> 01:18:41.397 When you read the cases, you are really struck by it, 01:18:43.137 --> 01:18:45.737 by how the different stereotypes really 01:18:46.239 --> 01:18:48.306 compel the different behaviors. 01:18:48.638 --> 01:18:51.638 Nevertheless, it all results in the same thing, 01:18:52.712 --> 01:18:55.712 subordination, and it all results in less pay, 01:18:56.383 --> 01:18:59.316 it all results in hostile work environments, 01:19:01.182 --> 01:19:04.182 it all results in the inability to be promoted appropriately. 01:19:05.524 --> 01:19:06.991 So these are issues -- 01:19:07.795 --> 01:19:10.795 I actually want to mention one of the worst things 01:19:10.766 --> 01:19:12.566 I've ever seen in my career 01:19:13.299 --> 01:19:15.899 was that we actually did a focus group, 01:19:16.737 --> 01:19:19.737 in upstate New York, by the way, right outside of Westchester, 01:19:21.608 --> 01:19:24.608 and we were trying to see how white Americans 01:19:25.246 --> 01:19:28.246 were thinking about issues around affirmative action. 01:19:29.584 --> 01:19:32.584 And I'll never forget it, it's probably going to go with me to my grave, 01:19:34.455 --> 01:19:37.455 is that a lady who was in one of the focus groups, 01:19:38.558 --> 01:19:41.558 not knowing who we were and who put all this together, 01:19:41.929 --> 01:19:44.929 when they were going around introducing themselves, she said, 01:19:45.198 --> 01:19:47.931 "my job is to tear up the black résumés." 01:19:48.869 --> 01:19:51.002 She just said it, that's my job, 01:19:54.909 --> 01:19:57.909 and in a room of 25 people, all white men and women, 01:19:59.012 --> 01:20:02.012 it was shocking to me that only three people said, 01:20:02.849 --> 01:20:05.849 "what are you talking about? Are you really serious?" 01:20:06.454 --> 01:20:08.987 and she said, "yes, that's what I do." 01:20:13.928 --> 01:20:16.928 Which means they never get into any audit possibilities. 01:20:18.265 --> 01:20:21.265 And they asked her, "well, how do you know that they're black?" 01:20:22.633 --> 01:20:25.633 She said, oh, that's easy. We know where people live, 01:20:26.539 --> 01:20:29.539 what high schools they went to, we look at the names. 01:20:29.610 --> 01:20:34.278 It's very simple to tell, sometimes you can even tell when they call 01:20:32.512 --> 01:20:38.382 by their voice, I mean, it was deep. 01:20:39.220 --> 01:20:42.220 And, of course, all my colleagues are restraining me 01:20:42.022 --> 01:20:44.022 from going through the window. 01:20:48.660 --> 01:20:51.660 But it was telling because -- and I'm not talking about 01:20:53.768 --> 01:20:56.768 60, 70, 80, I'm talking about discrimination very current, 01:20:57.304 --> 01:20:59.837 and it was very, very painful to watch 01:21:02.209 --> 01:21:05.076 because it just gives us the reality of how 01:21:08.548 --> 01:21:10.948 really deep and embedded and evasive 01:21:12.886 --> 01:21:15.553 racial discrimination is in our country. 01:21:13.654 --> 01:21:16.587 Chair Yang: Well, thank you for sharing that 01:21:16.656 --> 01:21:18.389 -- that was very powerful. 01:21:19.226 --> 01:21:22.226 I am out of time, so I'd like to turn it over to Commissioner Barker. 01:21:21.896 --> 01:21:24.896 We still have the red light, so if you see it getting red, 01:21:24.335 --> 01:21:26.668 we need to unfortunately cut it off 01:21:25.972 --> 01:21:28.972 so we can have time for everyone to ask questions. 01:21:30.337 --> 01:21:33.337 Commissioner Barker: Chairman Yang, if you don't mind, 01:21:32.439 --> 01:21:35.372 if you can move that so I can see the light. 01:21:37.541 --> 01:21:38.208 (Laughter) 01:21:36.477 --> 01:21:39.477 Commissioner Barker: Thanks, I don't want to get in trouble here. 01:21:40.314 --> 01:21:43.314 Thank you all for your testimony, every single one of you 01:21:44.150 --> 01:21:47.150 offer really good testimony on very different aspects 01:21:47.488 --> 01:21:50.488 of discrimination that we all need to be aware of 01:21:49.423 --> 01:21:51.756 and have in the front of our minds. 01:21:52.596 --> 01:21:55.596 I would like to focus my attention on Ms. Mesa-Estrada 01:21:56.692 --> 01:21:59.692 because I know that you started to talk about the guest worker problem 01:22:00.768 --> 01:22:03.768 and ran out of time. So I've got about five minutes left. 01:22:03.604 --> 01:22:06.604 Can you talk to us about the problem with guest workers? 01:22:06.673 --> 01:22:09.673 Victoria Mesa-Estrada: Thank you very much for letting me address this issue. 01:22:09.677 --> 01:22:12.677 I mean, as you know from litigation that the EEOC has taken on, 01:22:13.514 --> 01:22:16.514 the Global Horizons cases, guest workers, they're here, 01:22:15.816 --> 01:22:18.816 working in the country but they come in a condition ... 01:22:18.586 --> 01:22:20.853 they are very vulnerable to abuse. 01:22:21.693 --> 01:22:24.693 Their visas, if you're working under the H-2A program that is 01:22:24.157 --> 01:22:26.490 allowed by the Department of Labor, 01:22:27.160 --> 01:22:30.160 you don't have the portability provision, to really, 01:22:30.230 --> 01:22:33.230 if you don't like the work, just move on and find a new employer, 01:22:33.567 --> 01:22:36.567 but unfortunately these workers do come with their hands tied, 01:22:36.904 --> 01:22:39.904 and you have to understand all the layers that are behind that. 01:22:40.643 --> 01:22:42.443 Most of them come with debt 01:22:44.145 --> 01:22:47.145 because they have to assume all of these costs for travel, 01:22:49.283 --> 01:22:52.283 for living the first weeks because many of them just get here 01:22:52.350 --> 01:22:55.350 and it might happen that they are here for two weeks with no work, 01:22:55.022 --> 01:22:57.889 so they're already coming in that position. 01:22:58.729 --> 01:23:01.729 And when they're here, they really face a treatment 01:23:02.463 --> 01:23:05.463 that is very disfavorable compared to the other workers. 01:23:05.533 --> 01:23:08.533 They often find themselves in situations where they're actually being 01:23:09.068 --> 01:23:11.868 put to fight against other Latino workers, 01:23:11.700 --> 01:23:14.700 for example we have a lot of Mexican agricultural workers. 01:23:15.009 --> 01:23:18.009 And they come with visas. They come to Florida, for example, 01:23:18.078 --> 01:23:21.078 to work in the citrus industry. That's an industry that has 01:23:21.649 --> 01:23:24.649 traditionally been worked by the undocumented workforce in Florida. 01:23:25.485 --> 01:23:28.485 Now, there is this fight between the guest workers 01:23:30.358 --> 01:23:33.358 and the indigenous farm workers that are here as domestic. 01:23:33.427 --> 01:23:36.427 And there is always the interaction between them, 01:23:35.996 --> 01:23:38.996 there's the issues of race, there's the issues of ethnicity, 01:23:40.692 --> 01:23:43.692 there's the biases related to accents, to color, 01:23:43.470 --> 01:23:45.470 and they face this constantly. 01:23:44.538 --> 01:23:47.005 So the guest workers in particular -- 01:23:47.073 --> 01:23:50.073 this is something that we have been pushing forever, 01:23:51.444 --> 01:23:54.444 not only are they underpaid, not only are they victims of this hostile environment 01:23:53.748 --> 01:23:56.748 because they basically cannot open their mouth 01:23:57.054 --> 01:24:00.054 because they are reminded constantly if you complain 01:23:59.337 --> 01:24:02.337 we're going to put you on the first bus back to Mexico, 01:24:03.156 --> 01:24:06.156 and that's how it's going to go. It makes it really hard for them. 01:24:06.493 --> 01:24:09.493 And they're always thinking of that, their family is behind in Mexico, 01:24:09.829 --> 01:24:12.829 and this is a risk they're willing to take but it shouldn't be that way. 01:24:13.400 --> 01:24:16.400 And that's something we try to constantly remind people in the field 01:24:17.504 --> 01:24:20.504 when we do outreach, to tell them the fact you have this visa 01:24:19.306 --> 01:24:22.039 and that you're tied to this one employer 01:24:21.742 --> 01:24:24.475 does not mean that you don't have rights. 01:24:23.978 --> 01:24:26.511 And if you are an undocumented worker, 01:24:25.980 --> 01:24:28.313 we will say exactly the same thing, 01:24:28.381 --> 01:24:31.381 there's rights and you should be able to enforce them, 01:24:32.254 --> 01:24:34.187 and you need to come forward. 01:24:33.753 --> 01:24:36.753 But, unfortunately, the biggest problem that we have 01:24:36.449 --> 01:24:38.049 is really the resources, 01:24:37.858 --> 01:24:40.858 that there's really no one out there really going to these communities, 01:24:41.696 --> 01:24:44.696 providing the community outreach, the education, 01:24:44.364 --> 01:24:45.964 so they know what to do. 01:24:45.799 --> 01:24:48.799 And this is something we definitely hope that the EEOC 01:24:48.102 --> 01:24:51.102 can really improve and try to address more resources 01:24:50.904 --> 01:24:53.904 to really focus on those communities that are so vulnerable. 01:24:54.240 --> 01:24:57.240 Commissioner Barker: Thank you. And you hit on something 01:24:56.543 --> 01:24:59.276 that I think is so important, and that is 01:24:59.348 --> 01:25:02.348 the importance of people going out in the fields 01:25:02.619 --> 01:25:04.886 like you and your organization did 01:25:08.052 --> 01:25:11.052 to reach people because -- because there are language and cultural differences 01:25:13.427 --> 01:25:16.427 and because there is that -- our job is to protect 01:25:17.130 --> 01:25:19.997 every person who works in the United States 01:25:21.868 --> 01:25:24.868 for an employer of 15 or more people, and on some occasions fewer, 01:25:27.073 --> 01:25:29.406 regardless of their citizen status. 01:25:33.041 --> 01:25:35.308 That's a hard thing to communicate 01:25:38.785 --> 01:25:41.452 to a level where the women in particular 01:25:41.758 --> 01:25:44.758 have confidence in our agency that we won't -- 01:25:44.624 --> 01:25:47.091 we're not connected with Immigration, 01:25:46.230 --> 01:25:48.363 we're not going to turn them in, 01:25:48.456 --> 01:25:51.456 it's not our business to even know their status, 01:25:53.301 --> 01:25:56.301 it's our business to help them understand that, 01:25:56.504 --> 01:25:59.371 exactly like you said, they do have rights, 01:26:00.176 --> 01:26:02.443 they're employed, they have rights 01:26:03.709 --> 01:26:05.109 and we can help them. 01:26:05.179 --> 01:26:08.179 And a particular thing that I'd like to mention is 01:26:10.283 --> 01:26:13.283 Chairman Yang and I were talking briefly before the meeting about 01:26:13.186 --> 01:26:15.853 this particular issue and the difficulty 01:26:17.625 --> 01:26:19.425 and what our agency can do. 01:26:22.228 --> 01:26:25.228 The Commissioner's charge to me is perfectly designed 01:26:26.067 --> 01:26:29.067 to help immigrant, particularly immigrant women, 01:26:30.670 --> 01:26:33.670 because we can initiate an investigation without revealing 01:26:33.903 --> 01:26:36.236 who the woman was who came forward, 01:26:37.844 --> 01:26:40.844 so it's not like having to go to the DA's office and 01:26:41.414 --> 01:26:44.414 lodge a complaint where as soon as your name goes down on a complaint, 01:26:45.758 --> 01:26:48.758 the employer knows who brought the complaint, 01:26:49.083 --> 01:26:51.083 we can offer a lot of privacy. 01:26:52.558 --> 01:26:55.158 So thank you for your work in this area 01:26:55.196 --> 01:26:57.729 and for bringing these issues to mind. 01:26:58.865 --> 01:27:01.865 Chair Yang: Thank you. Commissioner Feldblum. 01:27:01.467 --> 01:27:03.667 Commissioner Feldblum: Thank you. 01:27:06.039 --> 01:27:09.039 So I want to come out this morning as a data geek. 01:27:11.312 --> 01:27:13.645 It seems to me that we need to know 01:27:14.048 --> 01:27:16.448 how much discrimination is out there 01:27:18.057 --> 01:27:21.057 partly to convey to the public the extent of discrimination 01:27:21.917 --> 01:27:24.917 and also to see whether we are actually moving the needle. 01:27:25.693 --> 01:27:28.693 So I want to start with Dr. Sprigg, given your time constraints, 01:27:27.762 --> 01:27:30.762 but I don't want that to have an adverse impact 01:27:33.133 --> 01:27:36.133 on our other witnesses, so if you would be conscious of the seven minutes. 01:27:38.071 --> 01:27:40.738 Do you think it is possible for the EEOC 01:27:42.343 --> 01:27:45.343 to measure the amount of discrimination that is out there, 01:27:47.247 --> 01:27:50.247 also keeping in mind that there is the intersectionality issue, 01:27:51.352 --> 01:27:54.352 so people don't always know why they were discriminated against, 01:27:55.389 --> 01:27:58.189 or is that simply an impossible endeavour, 01:27:57.490 --> 01:28:00.490 and therefore it will be difficult for us to know 01:28:00.328 --> 01:28:02.528 whether we have moved the needle? 01:28:02.862 --> 01:28:05.862 Dr. William Spriggs: Well, I think what's clear, 01:28:05.894 --> 01:28:08.694 is that it's very hard to enforce any law, 01:28:09.501 --> 01:28:11.168 especially workplace law. 01:28:11.838 --> 01:28:14.238 I'm not sure whether we can say that 01:28:16.105 --> 01:28:19.105 we can measure discrimination, but we can certainly set 01:28:21.716 --> 01:28:24.716 the baseline so we understand what is typical 01:28:25.286 --> 01:28:27.019 and what people are facing 01:28:26.854 --> 01:28:29.854 and we can understand the rate at which they are facing it, 01:28:31.060 --> 01:28:34.060 and then that going forward can give you a baseline to say, 01:28:35.232 --> 01:28:37.899 are we targeting our enforcement efforts 01:28:39.267 --> 01:28:42.267 to try and weed out those things and get that level down? 01:28:44.037 --> 01:28:45.837 So I think you can do that. 01:28:46.941 --> 01:28:49.941 Commissioner Feldblum: Others? I mean in particular 01:28:50.516 --> 01:28:53.516 I think I might move to Dr. Lundquist here, because 01:28:56.446 --> 01:28:59.446 often you can reduce the disparate impact of some screening tools 01:29:01.822 --> 01:29:04.822 based on race and ethnicity, but what you do then affects 01:29:05.896 --> 01:29:08.896 perhaps people with disabilities, including people on the autism spectrum 01:29:11.293 --> 01:29:14.293 that then aren't able to get through those new approaches. 01:29:14.568 --> 01:29:17.568 Kathleen Lundquist: It's really a challenge, particularly 01:29:17.638 --> 01:29:20.638 on the biodata-type measures that we're talking about, 01:29:20.975 --> 01:29:23.975 that are so pervasive and that happen very early on in the process. 01:29:27.113 --> 01:29:30.113 There are frequently questions that to a typical worker, 01:29:30.877 --> 01:29:33.877 say someone who was applying for a job as a customer service person, 01:29:37.258 --> 01:29:40.258 if the question is, I wake up -- endorse this, yes or no? 01:29:40.094 --> 01:29:43.094 I wake up in the morning with a positive attitude? 01:29:43.097 --> 01:29:45.897 If a person is, in fact, manic depressive, 01:29:47.103 --> 01:29:49.836 that answer may not come quite so easily. 01:29:49.669 --> 01:29:52.669 The question is not being asked in the context of work, 01:29:52.366 --> 01:29:55.233 it's being asked in a very general context. 01:29:56.841 --> 01:29:59.841 So employers now have to think about the tools that they used before 01:30:00.382 --> 01:30:03.382 that were predictive, and say "how do I keep that within the context 01:30:02.949 --> 01:30:05.949 of what I might actually ask somebody to do on the job." 01:30:06.020 --> 01:30:09.020 Commissioner Feldblum: Right. And that won't have necessarily a 01:30:08.588 --> 01:30:11.588 disparate impact based on race and ethnicity. 01:30:12.927 --> 01:30:15.927 So I guess for the other folks and maybe Ms. Mesa-Estrada, 01:30:17.297 --> 01:30:20.297 in terms of if we did try, not the way Dr. Spriggs said 01:30:20.601 --> 01:30:23.601 of the rate, now, and whether that the rate goes down, 01:30:24.571 --> 01:30:27.438 but overall how much discrimination exists, 01:30:31.612 --> 01:30:34.612 in terms of people saying "I think I was discriminated against." 01:30:36.478 --> 01:30:39.478 Do you think that's possible, especially given the populations 01:30:40.253 --> 01:30:43.253 that you know the most about, whether they would respond? 01:30:41.522 --> 01:30:44.522 Victoria Mesa-Estrada: Well, I would say i's really impossible, 01:30:44.859 --> 01:30:47.859 at this point, and I always think of this in the context of trials, 01:30:49.463 --> 01:30:52.463 for example, this whole inter-ethnic discrimination that we see every day, 01:30:53.566 --> 01:30:56.566 it doesn't come easy, for examaple, for a jury to understand 01:30:56.809 --> 01:30:59.809 that an Hispanic can discriminate against an Hispanic for being Hispanic, 01:30:59.134 --> 01:31:02.134 and you probably don't understand that statement either. 01:31:01.676 --> 01:31:04.676 I understand it because I have been in that position. 01:31:05.278 --> 01:31:08.278 The fact that I'm South American might actually give me all these benefits 01:31:09.883 --> 01:31:12.883 because I might be, without even opening my mouth, 01:31:13.921 --> 01:31:16.921 there is already this notion that, oh, she probably speaks better Spanish. 01:31:19.827 --> 01:31:22.827 Or if I'm Cuban in Miami, that might already give me many points 01:31:23.134 --> 01:31:26.134 just by saying I'm Cuban. But when you start -- 01:31:25.699 --> 01:31:28.699 I mean I can always think of this as in an interview, 01:31:28.873 --> 01:31:31.873 as you start talking, and I've been in that place where, 01:31:32.473 --> 01:31:35.473 the moment that I open my mouth I'm already thinking my accent is horrible, 01:31:39.646 --> 01:31:42.646 am I not the most proficient person to speak in English, 01:31:45.257 --> 01:31:48.257 the kind of people who are interviewing me are non-South Americans 01:31:50.589 --> 01:31:53.589 or are Cubans or are Mexicans, and I always have this bias in my head 01:31:52.360 --> 01:31:55.360 that I think are always going to be against me. 01:31:57.736 --> 01:32:00.736 So I imagine the position of an Hispanic worker who 01:32:00.999 --> 01:32:02.532 is a low wage worker, 01:32:02.769 --> 01:32:05.665 who might not have the highest levels of education, 01:32:05.800 --> 01:32:10.507 who has the status of no documentation in the United States, 01:32:11.111 --> 01:32:14.006 who has all these biases and stereotypes related to 01:32:14.420 --> 01:32:17.315 being indigenous, not speaking Spanish as their first language, 01:32:18.451 --> 01:32:21.920 speaking a dialect that already, it's very hard to understand. 01:32:21.460 --> 01:32:24.460 I mean I just don't think it's really possible at this point 01:32:25.320 --> 01:32:28.320 and until we address this interethnic discrimination 01:32:29.929 --> 01:32:32.929 as a policy statement, and we really evaluate, that there's 01:32:32.538 --> 01:32:35.405 this mix of issues that really inter-relate 01:32:34.468 --> 01:32:37.468 I don't think we're going to be able to come to that. 01:32:37.537 --> 01:32:40.537 Commissioner Feldblum: So in terms of the three of you 01:32:40.940 --> 01:32:43.607 over here on this side. Chair Yang knows 01:32:43.009 --> 01:32:45.142 I've been like a dog with a bone 01:32:46.747 --> 01:32:49.747 about getting our multiyear data and research plan out, 01:32:50.016 --> 01:32:52.816 and one of the suggestions in it is to see 01:32:52.948 --> 01:32:54.881 if we can measure a baseline. 01:32:54.689 --> 01:32:57.422 So, again, I know you're not researchers, 01:32:57.457 --> 01:32:59.990 but any sort of instincts about whether 01:32:59.494 --> 01:33:02.027 that is something we should try to do. 01:33:03.698 --> 01:33:06.698 Robert Weisberg: It seems progress could be measured 01:33:08.335 --> 01:33:10.268 rather than trying to measure 01:33:11.068 --> 01:33:13.868 some absolute number at the end of the day 01:33:13.236 --> 01:33:16.236 or some other sort of quantifiable measurement. 01:33:19.613 --> 01:33:22.613 The extent to which and... whether EEO-1 type forms 01:33:26.292 --> 01:33:29.292 or other types of more aggressive auditing reports 01:33:30.153 --> 01:33:33.153 or data that's required of employers maybe in more detail, 01:33:33.198 --> 01:33:35.798 and then maybe where there's red flags, 01:33:37.428 --> 01:33:40.428 whether it's through Commissioner charges or whatever it may be, 01:33:43.806 --> 01:33:46.806 to approach that... be more aggressive from looking at it 01:33:48.174 --> 01:33:51.174 at that vantage point. When Mr. Livingston was talking 01:33:51.305 --> 01:33:52.972 and I think about the ... 01:33:51.311 --> 01:33:54.244 Commissioner Feldblum: I'm going to stop you 01:33:53.476 --> 01:33:55.276 because of the yellow light 01:33:56.116 --> 01:33:59.116 and just see whether the other two of you have any reactions? 01:34:04.054 --> 01:34:07.054 Iliana Castillo-Frick: I agree with what Mr. Weisberg was saying. 01:34:12.500 --> 01:34:15.500 The progress is the best way to measure, especially in -- 01:34:20.072 --> 01:34:23.072 I know I can see Ms. Estrada's story is so compelling, 01:34:24.677 --> 01:34:27.077 and I personally believe is so true, 01:34:28.416 --> 01:34:31.416 but then you're in a more dynamic city as Miami, 01:34:33.287 --> 01:34:36.287 and there may be other types of discrimination happening. 01:34:36.862 --> 01:34:39.862 So progress is a more positive way to approach it. 01:34:39.656 --> 01:34:42.656 Commissioner Feldblum: My time is up, so, in my next round. 01:34:40.928 --> 01:34:43.928 Barbara Arnwine: I would love to answer that one too. 01:34:46.300 --> 01:34:49.300 Commissioner Feldblum: Well, maybe... well, we'll let it ... 01:34:50.137 --> 01:34:53.137 Chair Yang: We'll turn to Commissioner Lipnic to save the day. 01:34:52.201 --> 01:34:55.201 Commissioner Lipnic: So I'm happy to give you a chance on my time 01:34:56.041 --> 01:34:59.041 to answer that assuming I'll get some indulgence at the end. 01:35:00.884 --> 01:35:03.884 Barbara Arnwine: Well, I just think that the biggest problem out there, 01:35:02.949 --> 01:35:05.949 and we see this with the credit check problem, 01:35:07.220 --> 01:35:10.220 which I didn't get to talk about, which we know is a huge problem, 01:35:11.058 --> 01:35:14.058 is that most people don't know why they're rejected. 01:35:15.299 --> 01:35:17.366 And they just assume it's them, 01:35:17.030 --> 01:35:20.030 that there's something wrong with their background, 01:35:19.366 --> 01:35:21.566 something wrong with their match. 01:35:23.335 --> 01:35:25.402 And I think what we really need 01:35:25.206 --> 01:35:28.206 is greater transparency in why people are rejected. 01:35:29.309 --> 01:35:32.309 Because you go to the kiosk now, you fill out the kiosk, 01:35:33.146 --> 01:35:36.146 you put in your app, and you get a letter saying you weren't hired 01:35:36.483 --> 01:35:39.483 if you're lucky, usually you just don't hear back. 01:35:42.957 --> 01:35:45.957 And, people have no idea why they were rejected, 01:35:46.694 --> 01:35:49.627 what -- the lady I was talking about before, 01:35:50.229 --> 01:35:53.229 she's probably an algorithm now instead of -- 01:35:55.603 --> 01:35:58.603 but these are real problems, and I think that one of the real -- 01:35:58.405 --> 01:36:01.405 because I have -- I live in a household with a lot of millennials, 01:36:02.108 --> 01:36:03.975 and I watch them job search, 01:36:04.812 --> 01:36:07.812 and I really am surprised at the lack of information 01:36:08.349 --> 01:36:11.349 as to why people aren't hired. And I think that that's 01:36:12.185 --> 01:36:15.185 one place where this agency could do some more work 01:36:15.918 --> 01:36:18.785 on getting employers to be more transparent 01:36:18.824 --> 01:36:20.557 on why they reject people, 01:36:20.260 --> 01:36:23.127 especially if they're using a credit check. 01:36:23.563 --> 01:36:26.563 Because usually they will not tell, even though they have used it. 01:36:27.367 --> 01:36:29.900 I think that that should be mandatory, 01:36:29.137 --> 01:36:31.670 I don't think that should be optional. 01:36:32.772 --> 01:36:35.772 I really think that this agency is still challenged 01:36:35.142 --> 01:36:38.075 to come up with a guidance on credit checks, 01:36:38.612 --> 01:36:41.612 and that's one of the ones that I would really push hard. 01:36:41.516 --> 01:36:43.916 The last thing I want to say is that 01:36:45.786 --> 01:36:48.786 it's amazing to me, I went to a hotel in February, 01:36:49.522 --> 01:36:52.122 and I went to the same hotel last week. 01:36:53.727 --> 01:36:56.727 When we were there in February, people observed 01:36:57.564 --> 01:37:00.564 that there were no black employees, big New York hotel. 01:37:02.272 --> 01:37:04.672 And we were trying to figure it out. 01:37:05.238 --> 01:37:08.238 When I came back this time, there were black employees everywhere, 01:37:10.611 --> 01:37:13.611 everywhere, clearly been trained, all these new trainees 01:37:14.882 --> 01:37:17.215 in every single place in the hotel. 01:37:17.756 --> 01:37:19.756 And I said somebody sued them. 01:37:20.120 --> 01:37:23.488 I mean seriously, I said they must have gotten a lawsuit, 01:37:23.593 --> 01:37:25.989 because they were so conscientious, 01:37:26.029 --> 01:37:29.059 or somebody came in with a really strong diversity initiative, 01:37:29.195 --> 01:37:30.961 I don't think that was it, 01:37:31.067 --> 01:37:37.401 but it was very telling about what we can do when we want to do it, 01:37:37.571 --> 01:37:40.671 and when we feel compelled to do it. Anyway. Just an observation. 01:37:42.411 --> 01:37:45.078 Commissioner Lipnic: Reclaiming my time. 01:37:46.645 --> 01:37:48.445 Glad to have your response. 01:37:47.947 --> 01:37:50.480 Dr. Spriggs, I just wanted to ask you, 01:37:50.312 --> 01:37:53.312 to make sure I understand your testimony correctly. 01:37:55.424 --> 01:37:58.424 When you said about there are tools available 01:38:00.296 --> 01:38:03.296 for the EEOC, or for labor economists going forward 01:38:03.897 --> 01:38:09.033 to provide some further insights or data about discrimination, 01:38:08.336 --> 01:38:11.069 are you referring specifically to audits? 01:38:10.235 --> 01:38:12.102 Dr. Spriggs: (Nodding head). 01:38:11.077 --> 01:38:14.077 Commissioner Lipnic: OK. Can you elaborate a little bit about 01:38:14.909 --> 01:38:17.909 audits and how you think we the Commission would undertake that 01:38:17.478 --> 01:38:20.478 or is that something you're thinking BLS would be doing? 01:38:21.012 --> 01:38:24.012 Dr. Spriggs: No, I can assure you BLS wouldn't want to do that, 01:38:25.352 --> 01:38:28.085 and of course you have the conundrum that 01:38:27.389 --> 01:38:30.389 if you uncovered something that looked like discrimination, 01:38:30.758 --> 01:38:33.758 how do you handle it since you are an enforcement agency, 01:38:33.828 --> 01:38:36.828 BLS wouldn't want to do it because it looks like an enforcement. 01:38:40.734 --> 01:38:43.734 But if you don't take it to the point of actual hire 01:38:45.339 --> 01:38:48.339 and you can't because it's an audit, it's not a real person, 01:38:51.045 --> 01:38:54.045 I think -- I'm not the attorney, so I apologize 01:38:54.914 --> 01:38:57.114 if I'm speaking out of turn here, 01:38:58.452 --> 01:39:01.452 but I think to understand when similar résumés, 01:39:02.590 --> 01:39:05.590 and the actual design, you have to vary those résumés as well, 01:39:06.927 --> 01:39:09.927 so you can pick up, am I looking at discrimination based on race 01:39:12.500 --> 01:39:15.500 or something else, but if you sent out enough of the résumés, 01:39:19.277 --> 01:39:22.144 then -- and you do have to send out people. 01:39:24.010 --> 01:39:27.010 All jobs aren't on the internet, all job offers aren't public, 01:39:27.613 --> 01:39:30.613 and so one of the problems with trying to do an audit through résumé studies 01:39:30.507 --> 01:39:33.507 is that you can only do that if you know there are job openings. 01:39:34.622 --> 01:39:37.622 So you do have to modify it. But, yes, I am speaking of 01:39:39.732 --> 01:39:42.732 match-paired grouping of résumés or people going out; 01:39:45.398 --> 01:39:48.398 so you can get back how often do these disparities occur, 01:39:48.834 --> 01:39:50.434 what's the size of them, 01:39:50.071 --> 01:39:53.004 at which point of the process do they occur, 01:39:52.574 --> 01:39:55.574 and then you have this benchmark, this baseline, 01:39:55.141 --> 01:39:58.141 that can then tell you, we know if you ask employers, 01:39:57.845 --> 01:40:00.445 "Do you discriminate?" They all say no. 01:39:58.917 --> 01:40:01.717 "Do you think there's discrimination?" No. 01:40:01.111 --> 01:40:04.044 If you ask workers, if you ask black people, 01:40:03.084 --> 01:40:06.084 they don't think there's discrimination in the labor market, 01:40:06.152 --> 01:40:09.152 many of them don't, they think they're being treated fairly 01:40:08.190 --> 01:40:11.190 because they don't know, you don't know when you apply. 01:40:15.863 --> 01:40:18.863 So you can't do it that way, you actually do have to test. 01:40:20.467 --> 01:40:23.467 And this, I think, will get you some information. 01:40:24.304 --> 01:40:27.304 I just want to pick up quickly on something that Robert said, though, 01:40:29.676 --> 01:40:32.676 and that is where there are questions of disparate impact, 01:40:32.246 --> 01:40:35.246 again, because I think what the audits are showing us 01:40:34.113 --> 01:40:36.513 is that this isn't disparate impact, 01:40:37.617 --> 01:40:40.017 it really is differential treatment, 01:40:41.122 --> 01:40:44.122 is that you really do need, if you're going to use credit scores, 01:40:44.755 --> 01:40:46.688 give me everything on hiring, 01:40:46.761 --> 01:40:49.761 and show me how you actually use the credit score, 01:40:50.331 --> 01:40:53.331 because I suspect, as is the case where there's background checks, 01:40:54.735 --> 01:40:57.735 criminal background checks, drug testing is another one of these, 01:41:00.875 --> 01:41:03.875 these are differential treatment, not disparate impact, 01:41:05.213 --> 01:41:08.213 they are a smokescreen that allows them to discourage people 01:41:07.681 --> 01:41:10.281 coming back to them, people will assume 01:41:12.652 --> 01:41:15.652 that they got eliminated because of these criteria, 01:41:16.593 --> 01:41:18.860 and the reality is that wasn't it. 01:41:18.692 --> 01:41:21.692 Commissioner Lipnic: And can I just ask, I'm assuming that, 01:41:23.560 --> 01:41:26.560 if the EEOC wanted to have some type of audits 01:41:27.902 --> 01:41:30.902 and establish some type of baseline in terms of discrimination, right, 01:41:32.306 --> 01:41:35.306 that ... effective enforcement, and I agree with you it's very hard to measure 01:41:38.445 --> 01:41:41.445 effectiveness of enforcement of any law, particularly employment law. 01:41:41.345 --> 01:41:44.012 But I am assuming that you would suggest 01:41:45.352 --> 01:41:48.352 that you would have to do it -- if you wanted a true labor force perspective 01:41:52.158 --> 01:41:55.158 in multiple locations, geographic diversity, industrial diversity, 01:41:55.495 --> 01:41:58.495 all different types of workplaces, where you would have to do this, 01:41:58.299 --> 01:42:01.299 which would be fairly labor intensive, right, 01:42:01.636 --> 01:42:04.636 in terms of actually conducting the kinds of audits that you are suggesting, 01:42:05.906 --> 01:42:08.906 if you wanted really to establish a baseline across the board. 01:42:11.539 --> 01:42:14.539 Dr. William Spriggs: It would be but, again, so you 01:42:14.848 --> 01:42:17.848 probably couldn't use it for enforcement because 01:42:18.185 --> 01:42:21.185 you're not going to have enough from one employer 01:42:21.589 --> 01:42:24.522 to say this employer discriminates. However, 01:42:25.859 --> 01:42:28.859 I think that would let you speak to strategy. 01:42:30.228 --> 01:42:33.228 If I do a very large case, in a very public way, 01:42:35.838 --> 01:42:38.838 and pick out the pattern or the practice that I have observed 01:42:39.940 --> 01:42:42.940 is causing a problem, do I get employers to draw back on that 01:42:44.308 --> 01:42:47.308 and stop it, and then you can see subsequently did that have an affect. 01:42:48.681 --> 01:42:51.681 Or maybe you find it's specific industries that tend to 01:42:53.021 --> 01:42:56.021 do something the most, and then you can target industries, 01:42:57.123 --> 01:43:00.123 and say "We'll do that industry." The Wage and Hour Division 01:43:00.962 --> 01:43:03.962 at the Department of Labor is now doing this sort of thing 01:43:06.334 --> 01:43:09.334 to try and look at issues of wage theft and other things and targeting 01:43:10.171 --> 01:43:13.171 where do see these patterns and practices, and how do we 01:43:14.239 --> 01:43:17.239 make a big enough impact to get that specific industry 01:43:20.381 --> 01:43:23.381 to change those practices so you can see if you can move the needle. 01:43:22.152 --> 01:43:25.152 Commissioner Lipnic: And we would, as Commissioner Barker 01:43:25.752 --> 01:43:28.752 suggested, one of the tools we have is our Commissioners' charges. 01:43:28.822 --> 01:43:31.822 So if we had something to more inform our work 01:43:30.691 --> 01:43:33.091 that would be an ability to do that. 01:43:33.493 --> 01:43:35.026 Thank you, Madam Chair. 01:43:34.327 --> 01:43:37.327 Chair Yang: Thank you. Now, Commissioner Burrows. 01:43:35.596 --> 01:43:38.596 Commissioner Burrows: Good morning. Thank you. 01:43:39.699 --> 01:43:42.699 I wanted to first just acknowledge, I had the pleasure of meeting 01:43:43.804 --> 01:43:46.804 and I'm so glad he was able to join us, Ronald Fulton who is here, 01:43:47.112 --> 01:43:50.112 Trayvon Martin's uncle, and we're so pleased that you were able 01:43:49.943 --> 01:43:52.943 to take the time to come out and hear this hearing. 01:43:55.482 --> 01:43:58.482 I had a number of questions but very quickly wanted to, I think, 01:44:00.616 --> 01:44:03.616 start I guess with Dr. Lundquist, and in thinking about, 01:44:03.156 --> 01:44:06.156 you know, we are engaged in such an important 01:44:07.794 --> 01:44:10.261 national dialogue now around policing 01:44:11.632 --> 01:44:14.432 and the difficult issues that are ongoing, 01:44:14.668 --> 01:44:17.268 racial profiling, other kinds of issues 01:44:17.838 --> 01:44:20.838 that have also raised questions about diversity and policing. 01:44:23.210 --> 01:44:26.210 In listening to your testimony and reading your written testimony, 01:44:25.345 --> 01:44:28.278 it made me think about some of the ways that 01:44:28.585 --> 01:44:31.585 the issues you raised with respect to selection devices 01:44:32.453 --> 01:44:35.186 may also be relevant to that conversation 01:44:34.053 --> 01:44:36.653 with respect to diversity and policing, 01:44:35.389 --> 01:44:38.189 and I wondered if you could speak to that. 01:44:40.061 --> 01:44:43.061 Kathleen Lundquist: I actually believe there are two levels 01:44:42.363 --> 01:44:45.363 at which you need to attack the policing problem, 01:44:46.399 --> 01:44:49.399 and that's both who you are hiring in at the entry level 01:44:50.504 --> 01:44:53.504 and how you're using techniques to make those decisions, 01:44:54.342 --> 01:44:57.342 but also what's happening at those promotional levels, 01:44:58.179 --> 01:45:01.179 who are the decisionmakers, who are the people who are actually 01:45:03.484 --> 01:45:06.484 leading the organizations, who are the people sitting on the interview teams, 01:45:05.985 --> 01:45:08.785 who are the people who are the role models 01:45:08.856 --> 01:45:11.856 that are attracting others to come to the organization. 01:45:14.728 --> 01:45:17.728 At least in our work, either one of those alone isn't sufficient. 01:45:20.835 --> 01:45:23.835 So, I would encourage a lot more emphasis on what is happening 01:45:23.903 --> 01:45:26.903 in terms of that pipeline for leadership positions, 01:45:27.074 --> 01:45:29.207 particularly in law enforcement. 01:45:29.543 --> 01:45:32.543 The other thing that we've noticed in our work 01:45:33.180 --> 01:45:36.180 is that there are some very inventive techniques that are out there, 01:45:40.855 --> 01:45:43.855 that municipalities and others are experimenting with, 01:45:43.925 --> 01:45:46.925 I guess is the right word. Looking at ways to say 01:45:48.361 --> 01:45:51.361 "if I really want to change the complexion of this police force," 01:45:54.237 --> 01:45:57.237 literally and figuratively, "what kinds of things could I look at." 01:45:59.306 --> 01:46:02.306 So we've been looking at some scored application blanks, 01:46:02.841 --> 01:46:05.708 looking at criteria that are most important 01:46:07.815 --> 01:46:10.815 to an organization changing its interaction with the community. 01:46:11.652 --> 01:46:14.652 So, for example, once you've screened all the candidates 01:46:14.751 --> 01:46:17.484 and now you have 200 people for ten jobs, 01:46:20.094 --> 01:46:23.094 maybe that's the point at which you look at that 200-person group and say, 01:46:23.934 --> 01:46:26.934 you know, we don't have people who speak multiple languages, 01:46:26.473 --> 01:46:29.473 that would be of value for this organization. 01:46:29.566 --> 01:46:32.566 Or we don't have people who have historically lived 01:46:32.638 --> 01:46:35.638 in the inner-city and understand some of the challenges there, 01:46:40.348 --> 01:46:43.348 so that increasingly focusing on those other kinds of diversity characteristics 01:46:43.655 --> 01:46:45.388 that are useful to the job 01:46:44.951 --> 01:46:47.951 that distinguish among otherwise qualified candidates, 01:46:48.118 --> 01:46:50.785 I think is a really effective way to go, 01:46:50.423 --> 01:46:53.423 and we've seen some really good progress with that. 01:46:53.226 --> 01:46:56.226 Commissioner Burrows: That's useful. I think this is maybe an area where, 01:46:57.064 --> 01:47:00.064 to use Mr. Livingston's term, the business need for 01:47:03.738 --> 01:47:06.738 some of this diversity may also go beyond compliance, some of the issues. 01:47:09.110 --> 01:47:12.110 Ms. Mesa-Estrada, I wanted to ask you, in particular, about 01:47:13.014 --> 01:47:16.014 you spoke so helpfully to some of the issues that are 01:47:18.653 --> 01:47:21.653 facing farmworkers and also the important point that 01:47:21.454 --> 01:47:24.454 Commissioner Barker raised on this issue. I'm wondering, is there 01:47:26.590 --> 01:47:29.590 more that we could do to get out our message for folks. 01:47:31.198 --> 01:47:34.198 I know there's a big fear of retaliation, and that is obviously 01:47:33.736 --> 01:47:36.736 something that we put a high priority on addressing. 01:47:39.134 --> 01:47:42.134 How do we do a better job of that, particularly letting folks know 01:47:41.545 --> 01:47:44.545 about the Commissioners' charges, for instance, so that we can actually 01:47:45.146 --> 01:47:48.146 get to people for the folks who are willing to take that risk, 01:47:47.709 --> 01:47:50.709 they actually know that we're there, because that's a big concern of mine. 01:47:50.782 --> 01:47:53.782 Victoria Mesa-Estrada: Certainly there's challenges 01:47:54.355 --> 01:47:57.355 in getting to these communities, especially with guest workers, 01:47:57.425 --> 01:48:00.425 because also depending on the program you're working on, 01:48:02.195 --> 01:48:05.195 if you're an H-2A agricultural worker, we can tell where they are located 01:48:04.998 --> 01:48:07.265 because they have to have housing, 01:48:06.567 --> 01:48:09.567 so that's a place that we can easily go and try to 01:48:11.672 --> 01:48:14.672 reach out to these communities. But for example in the case of H-2B workers, 01:48:13.737 --> 01:48:16.737 people coming to work in services industries, it hotels, 01:48:18.110 --> 01:48:22.447 in landscaping, in carnivals, usually they don't have housing 01:48:21.646 --> 01:48:24.246 so it's very hard to reach out to them. 01:48:26.089 --> 01:48:29.089 So my recommendation I think it really has to go back to their countries. 01:48:28.922 --> 01:48:31.922 I think there has to be a dialogue with those countries 01:48:32.526 --> 01:48:34.726 that are exporting these workers. 01:48:36.093 --> 01:48:39.093 Try to provide the information that can be provided to the workers 01:48:39.666 --> 01:48:42.666 at the point they're crossing the border, or when they're getting their visas, 01:48:44.274 --> 01:48:47.274 the Department of Labor has tried to do this somewhat effectively 01:48:49.911 --> 01:48:52.911 and through Memorandums of Understanding with the Department of State 01:48:54.248 --> 01:48:57.248 they have provided workers with basic, "know your rights" 01:48:57.220 --> 01:48:59.553 at the moment they get their visas, 01:48:59.119 --> 01:49:02.119 so maybe this is something that the EEOC can explore further, 01:49:03.089 --> 01:49:06.089 I know there's been conversations by the EEOC general counsel, for example, 01:49:06.426 --> 01:49:09.426 with the Mexican embassy, in trying to get the message out there. 01:49:10.263 --> 01:49:13.263 Maybe this is a conversation that really needs to be taken at that point, 01:49:15.233 --> 01:49:17.366 at that high level, I would say. 01:49:20.241 --> 01:49:23.241 Commissioner Burrows: Ms. Castillo-Frick, I was going to ask you about, 01:49:25.481 --> 01:49:28.481 you work probably more than most folks every day with people 01:49:28.816 --> 01:49:31.816 who are about to go into the workforce for maybe the very first time. 01:49:32.920 --> 01:49:35.653 In terms of dealing with younger workers, 01:49:37.525 --> 01:49:40.525 what kind of things are you doing to maybe get them aware 01:49:41.161 --> 01:49:44.161 or that we should be doing, the fact that they may encounter 01:49:44.999 --> 01:49:47.999 job discrimination and how to approach those issues. 01:49:48.329 --> 01:49:51.329 Iliana Castillo-Frick: It's interesting that you ask that question, 01:49:50.870 --> 01:49:53.870 because as an institution of higher learning, 01:49:54.775 --> 01:49:57.708 part of our, what we call learning outcomes, 01:49:59.316 --> 01:50:02.316 for our students as we put them through their pathways, 01:50:04.251 --> 01:50:07.251 is to ensure that they understand and they learn about employability skills, 01:50:10.153 --> 01:50:13.153 about their rights, about their commitment to the society 01:50:13.422 --> 01:50:14.689 in which they live. 01:50:14.695 --> 01:50:17.228 So as part of our educational process, 01:50:17.965 --> 01:50:20.832 we do educate our students and prepare them 01:50:22.897 --> 01:50:25.697 with those things in mind. As an employer, 01:50:28.409 --> 01:50:31.409 we hire employees across all levels, from our faculty to 01:50:34.281 --> 01:50:37.281 our support staff which can be custodial services personnel, 01:50:39.989 --> 01:50:42.656 public safety. So as we see millennials, 01:50:43.923 --> 01:50:46.923 and I believe Barbara mentioned, she's in a household of millennials, 01:50:50.302 --> 01:50:53.302 we are finding they're a different group from what we knew, 01:50:54.434 --> 01:50:57.139 so we have to treat them differently, 01:50:57.207 --> 01:50:59.913 and I don't mean differently but we have to 01:51:01.042 --> 01:51:03.850 understand their expectations, 01:51:03.953 --> 01:51:05.949 understand what is important to them, 01:51:06.789 --> 01:51:09.789 understand that technology is the only thing they know. 01:51:10.359 --> 01:51:13.359 They only know cell phones and they only know the Internet. 01:51:14.963 --> 01:51:17.963 We are now bringing them ... there are libraries 01:51:17.098 --> 01:51:19.498 and in libraries you can read books. 01:51:20.335 --> 01:51:23.335 So we go through that whole process as students 01:51:24.175 --> 01:51:27.175 and then as employees, I hope that answers your question. 01:51:26.441 --> 01:51:28.974 Chair Yang: Well, thank you very much. 01:51:29.812 --> 01:51:32.812 We are going to take a brief 10-minute break until 11:05. 01:51:32.247 --> 01:51:35.114 I want to thank you all for your testimony, 01:51:33.649 --> 01:51:36.649 and then we'll have a second round of questioning. 01:51:36.485 --> 01:51:39.485 Barbara Arnwine: Can I say one thing before I leave? 01:51:37.653 --> 01:51:40.253 Chair Yang: Yes, yes, before you leave. 01:51:41.328 --> 01:51:44.328 Barbara Arnwine: I am the convenor of the National 01:51:44.860 --> 01:51:47.660 Civil Rights Coalition on Policing Reform. 01:51:50.799 --> 01:51:53.799 On the policing issue, because I know Mr. Weisberg 01:51:52.100 --> 01:51:57.670 was speaking earlier, and you were referring to the Fort Lauderdale 01:51:57.739 --> 01:52:00.739 racist e-mails, which we've seen all over the country. 01:52:01.339 --> 01:52:04.339 We've seen these kinds of, this e-mail culture of 01:52:06.147 --> 01:52:09.014 derision and hatred towards the populations 01:52:09.517 --> 01:52:11.584 that these police forces serve. 01:52:14.223 --> 01:52:17.223 I think that one of the hardest interventions 01:52:20.862 --> 01:52:23.862 for us to figure out in breaking down racial isolation, 01:52:26.502 --> 01:52:29.502 racial exclusion, is the what I call the culture of the workplace, 01:52:32.141 --> 01:52:35.141 and the problem with policing, is that the culture of the workplace, 01:52:38.780 --> 01:52:41.780 which is a three-century culture, is so, you know, 01:52:43.920 --> 01:52:46.920 inured to the idea that its whole purpose is to control 01:52:49.325 --> 01:52:52.325 African-American, Latino and Native American populations, 01:52:53.691 --> 01:52:56.691 I mean, that's what they believe. It's not a protection theory. 01:52:59.302 --> 01:53:02.302 And this unfortunately this is not race in the sense of 01:53:03.672 --> 01:53:06.672 who is employed. I think a more diverse police force is great, 01:53:07.242 --> 01:53:10.242 and we do know that gender does make a difference 01:53:11.611 --> 01:53:14.611 when we have a police force that has more gender integration, 01:53:17.053 --> 01:53:20.053 but we know among men, unfortunately, that the frat culture 01:53:20.656 --> 01:53:23.656 just continues, regardless of who's in those jobs, 01:53:24.163 --> 01:53:26.963 and that what you really need is, I think, 01:53:27.824 --> 01:53:30.824 is that we need to start looking at some of these workplaces 01:53:31.133 --> 01:53:34.133 that have been very resistant to integration, 01:53:36.772 --> 01:53:39.772 very resistant to diversity and begin to figure out 01:53:40.309 --> 01:53:43.109 how to break down the cultural impediments 01:53:45.214 --> 01:53:48.214 that even when you change and make it more diverse, 01:53:48.453 --> 01:53:51.453 the people of color who come in, just become like 01:53:52.586 --> 01:53:54.786 the people who are there already, 01:53:54.856 --> 01:53:57.856 and have the same prejudices, the same problems, 01:53:58.224 --> 01:54:00.691 or as we saw in St. Louis they leave. 01:54:00.997 --> 01:54:03.997 They decide they can't work in that environment, they can't fit, 01:54:04.598 --> 01:54:05.931 and they just leave. 01:54:07.536 --> 01:54:10.536 So I just think that there's a deeper dive here 01:54:10.271 --> 01:54:12.338 that we ought to be looking at, 01:54:11.509 --> 01:54:14.109 and I think about it constantly because 01:54:15.877 --> 01:54:18.477 I go into law firms all over the place, 01:54:19.247 --> 01:54:22.047 and I'm always shocked at how on one floor 01:54:22.651 --> 01:54:25.651 you can have a law firm that's very diverse racially, 01:54:27.756 --> 01:54:30.756 in the sense of who works there, not necessarily all the lawyers, 01:54:33.128 --> 01:54:36.128 but you can go right upstairs and see another law firm that's lilly white, 01:54:37.363 --> 01:54:38.963 and it makes zero sense. 01:54:39.269 --> 01:54:42.269 They're drawing from the same identical applicant pool, 01:54:44.667 --> 01:54:47.667 but it's a cultural impediment that who they think they are, 01:54:47.806 --> 01:54:50.739 and what it means to be racially stratified. 01:54:51.313 --> 01:54:54.313 So I just think there's a lot more we need to look at here. 01:54:53.447 --> 01:54:55.847 Chair Yang: Well, thank you so much. 01:54:55.918 --> 01:54:58.918 We will take a quick break, it may be about five minutes now. 01:54:58.722 --> 01:55:00.189 11:05 we'll reconvene.