U.S. Equal Employment Opportunity Commission
JACQUELINE A. BERRIEN, Chair
STUART J. ISHIMARU, Commissioner
CONSTANCE S. BARKER, Commissioner
CHAI R. FELDBLUM, Commissioner
VICTORIA A. LIPNIC, Commissioner
P. DAVID LOPEZ, General Counsel
PEGGY R. MASTROIANNI, Legal Counsel
BERNADETTE B. WILSON, Acting Executive Officer
This transcript was produced from a DVD provided by the Equal Employment Opportunity Commission.
CHAIR BERRIEN: Good morning everyone. The meeting will now be called to order and I want to thank everyone for joining us this morning. In accordance with the Sunshine Act, part of today's meeting is open to public observation of the Commission's deliberations and voting. Part of the meeting will be closed. The closed portion of today's meeting will follow after the open session.
At this time I am going to ask Bernadette Wilson to announce any notation votes that have taken place since the last Commission meeting, Ms. Wilson?
MS. WILSON: Good morning, and before I begin, is there anyone in need of sign language, interpreter services?
MS. WILSON: Okay, good morning again Madam Chair, Commissioners, I’m Bernadette Wilson from the Executive Secretariat. We'd like to remind our audience that questions and comments from the audience are not permitted during the meeting and we ask that you carry on any conversations outside the meeting room, departing and reentering as quietly as possible.
Also, please take this opportunity to turn your cell phones off, or to vibrate mode. I would also like to remind the audience that in case of emergency, there are exit doors to the right and left as you exit this room. Additionally, the restrooms are down the hall to the right and left of the elevators.
During the period February 11, 2012 through February 17, 2012, the Commission acted on one item by notation vote:
Approved the Obligation of Funds to Host the 2012 Technical Assistance Program Seminars Pilot Project.
CHAIR BERRIEN: Thank you Ms. Wilson. At the risk of sounding like someone at an award show, there really is only one way to begin this meeting from my perspective: we are here to consider a new Strategic Plan for this Agency. But the truth is we would not be here if it had not been for some tremendously hard work that has gone on over weeks and months.
So I'd like to begin my comments this morning really with appreciation, to express my profound appreciation to those on our staff and to those on the Commission who have participated in a very long and comprehensive process that has gotten us to the point of considering a new Strategic Plan for the Agency today.
As you'll hear shortly, the Plan before us today is the culmination of an extensive, collaborative, substantive and challenging process. We sought and ultimately received, input from many EEOC stakeholders, both internal and external to the Agency. As a result, the Plan is comprehensive and informed by experience, yet it is also ambitious and forward-looking. So I would like to first thank the three people who you will hear from today for their leadership of the strategic planning process: EEOC Chief Operating Officer and Performance Improvement Officer, Claudia Withers; Office of Research Information and Planning Director and Deputy Performance Improvement Officer, Deidre Flippen; and my colleague, Commissioner Chai Feldblum, who led the Performance Management Group in the strategic planning effort.
We are here today, a full week before the deadline, considering a Strategic Plan that reflects a tremendous amount of work because of their collective commitment to produce the best possible strategic plan to guide the next four years of the EEOC's work. They never lost sight of the goal and were determined to complete their assignment on time. This is even more remarkable because they all have such full portfolios beyond the Strategic Plan.
I know that they would quickly add that they would not have been able to accomplish what they did without the tireless support of Dona Bland in the Office of Research Information and Planning, Sharon Masling in Commissioner Feldblum's office and Joi Chaney in my office.
I am also glad to see in the audience and behind me on the dais, many of the strategic planning workgroup and performance measurement group members, who worked diligently at each stage of this process to draft a Strategic Plan for the Commission to review. And I trust that at least some members are also streaming online from remote locations and from our various field offices.
Your contributions will be acknowledged and you will all be listed in the published Strategic Plan, and I wish that time permitted me to go over each name individually.
But one of the first things that occurred in this process was that I decided that I wanted the group to be larger than perhaps initially planned, and that I wanted very, very broad participation. So there is a long list of people to thank.
I won't name the names, but I will thank the office and program office directors for supporting the participation of workgroup members. We had representatives from the Headquarters, Office of Field Programs, Office of Federal Operations, the Office of General Counsel, the Office of Legal Counsel, the Office of Communications and Legislative Affairs, Office of the Chief Financial Officer, Office of Research Information and Planning, the Office of Information Technology, the National Council of EEOC Locals Number 216, each Commissioner’s office and many of our Field Offices across the country.
I would also like to thank the internal and external stakeholders who submitted comments on the draft Plan, and I see at least some of them here today as well. Our strategic planning team carefully considered and often adopted your recommendations, which I believe has strengthened the Plan that is before us.
Finally, but certainly not least, I want to thank my colleagues on the Commission for their contributions to the Plan throughout the process, from your early input to allowing your staff to serve on the planning workgroups, and providing feedback on each draft of the Plan.
I want to offer a special thank you to Commissioner Ishimaru, my colleague who drafted a strategic plan when he served as Acting Chair. Your work to develop the draft plan during that time greatly facilitated our efforts and has helped to inform our work and I believe is greatly represented in what’s before the Commission today as well. So thank you.
When Claudia, Deidre and I first began thinking about the strategic plan, I shared my vision that the Plan and the process we engaged in to develop it, should be creative, comprehensive, collaborative and challenging. I wanted to encourage broad participation, to solicit a wide range of viewpoints, and create a process in which we not only heard from those we would expect to hear from; but also welcomed input from those who may never have participated in strategic planning before.
In short, I believe that every voice should be heard. All aspects of the Agency's work should be reviewed and evaluated for what was and was not working. We needed to approach the task with the willingness to think freely, and a commitment to never allow an inquiry to begin and end with the phrase, "Well that is the way we have always done it."
I asked Commissioner Feldblum to lead the Performance Measurement Group, confident that she would bring the same commitment to fresh thinking, as well as her boundless energy to the process. She delivered as expected.
The leadership team and I shared something else as well: a belief that while this Strategic Plan is specifically focused on the next four years; it is built upon a foundation of four and a half decades and it should ultimately be a part of the foundation of this Agency for decades to come.
As you will hear momentarily, this Plan seeks to do more than improve the EEOC's handling of charges of discrimination. It is important that we do that, but that is not the end of our work.
On our way into this hearing room, we passed a photo of President Johnson signing the Civil Rights Act of 1964. Ultimately, this Plan seeks to chart a course toward ending and remedying unlawful employment discrimination in the 21st century, so that our nation might one day soon realize the vision of justice and equality in the workplace that motivated Congress in 1964, and the President, in enacting Title VII of the Civil Rights Act. It is the force that Dr. King and many other men and women who surrounded President Johnson as he signed that bill into law, knew was necessary and believed was possible. That is what guides us.
This Plan will require that the EEOC mobilize all of its operation and resources to operate as one agency, private and federal, administrative and legal, enforcement and education, efficiently and effectively.
It will shine light on and put an end to pernicious discriminatory practices that have persisted throughout the last 45 years of the EEOC's existence, and to identify and get out in front of those discriminatory practices that pose new challenges in the 21st century workplace.
Just as each of us benefitted from the efforts of generations before us, we have a duty to ensure that generations after us benefit from our efforts. Without that, there is no way we can consider ourselves successful.
The door to employment opportunities must be opened further and the workplace should operate more fairly because of our service. The Strategic Plan is a step in the direction of advancing the highest aspirations that created the EEOC.
I enthusiastically support the Plan that you will hear more about this morning, and am deeply appreciative of the very hard work that led to its development. With that, I thank you again, and I look forward to the testimony today and to the comments of my colleagues. And I'd like to turn now to Commissioner Ishimaru for opening remarks.
COMMISSIONER ISHIMARU: Well thank you Madam Chair. I too am delighted we are here. This frankly is the first strategic plan that I’ve had the opportunity to vote on and I appreciate all of the effort that has gone into it. As you noted, we had an exercise when I was in the Acting Chair's Office to create a strategic plan, not necessarily to come to closure on it, but as an exercise, to get us thinking about how do we do this, how do we go beyond what we’ve done before, and I thought it was a good exercise but I think you’ve gone from there to come up with a Plan that will help guide us for the future.
So I’m optimistic. I believe that this Strategic Plan will truly transform the culture and operations of the Agency, and let me get right to the basis for my optimism and save my appreciations for my colleagues for a bit later.
Two simple principles drive this Plan. First, priorities drive all of our work and the allocation of resources, and second, a consistent and excellent customer service drives all of our interactions, systems and processes.
The most important piece and critical piece of this Strategic Plan is the first strategy; to develop a Strategic Enforcement Plan that will determine national priorities, implement a planned, coordinated and integrated approach in the private, public and federal sectors. This isn't just my view, but the views of EEOC leaders such as Spencer Lewis, Reuben Daniels, Keith Hill, Dexter Brooks and others who served on this workgroup.
The simple truth is that EEOC cannot investigate or litigate all of the charges it receives. We have to make smart and difficult choices in setting priorities, given our expanding workload and declining resources.
The Strategic Enforcement Plan cannot be like the National Enforcement Plan, where seemingly everything was a priority. Most importantly, resources must be allocated and reallocated to align with the Strategic Plan.
The sheer volume of charges EEOC receives demands that the agency implement priority-based and consistent processes. Concentrating enforcement activity from beginning to end on priorities requires a dramatic shift away from the priority charge handling procedures, or PCHP, which an independent evaluation criticized as severely flawed in its implementation.
PCHP must be revised and closely monitored to properly allocate work and resources to charges, raising priorities under the Strategic Enforcement Plan.
A large percentage of investigative time is currently spent on B.charges, yet B-charges are not priorities. The Agency can no longer afford to spend its time or resources on work that does not further our priorities. Planned and coordinated enforcement means breaking down the artificial silos in the Agency that have hindered our effectiveness.
The Strategic Enforcement Plan envisions greater collaboration and coordination within and between district offices, and headquarters in the field.
A coordinated effort means selecting the right cases in the right jurisdictions for truly effective law enforcement. It implements a national law enforcement approach that will have a greater impact in reducing discrimination nationwide.
Reducing unlawful employment discrimination in the federal sector is an integral part of achieving strategic objective one, and fulfilling the mission of the agency, since the federal government is the largest employer in the country. EEOC's adjudicatory and oversight responsibilities in the federal sector will no longer be viewed as secondary.
The second principle driving this Plan is excellent and consistent service to all of our customers, in the private, public and federal sectors. The President has directed federal agencies that serve the public to put people first. For EEOC, putting people first means a dramatic change in how we do our jobs. It requires timely and regular communications to keep all informed about the progress of investigations and litigation in the private sector, and hearings in the federal sector.
Putting people first demands sufficient resources for innovative technology that the public expects. People expect to be able to file charges and check the status of their charges online. This would be a significant improvement in customer service.
Employers and employees have stressed the need for EEOC to implement consistent practices and procedures in its field offices. It is a disservice to the public to have investigative procedures and practices that vary from EEOC office to office.
Excellent and consistent customer service must also drive our work in the federal sector. The Strategic Plan contemplates a new case management system for handling federal sector hearings and appeals, and a new federal sector quality control plan. These systems will enable the Agency to bring consistent and greater efficiencies to the processing of federal sector complaints.
You know, in my view, EEOC should use the Zappos model of customer service. I happen to be a satisfied user of Zappos. Zappos's philosophy is to “wow” with service and experience. Excellent and consistent customer service is a significant challenge for the EEOC but an attainable goal, if the Agency leadership and management is committed to it and held accountable for it.
Finally, I want to convey my appreciation to the Chair, Commissioner Feldblum, Deidre Flippen, Claudia Withers and their staffs for the development of this Plan. It was an open and inclusive process that valued input from internal and external stakeholders and sets a new positive direction for the Agency. This Plan directs the staff to think differently and strategically about how we do our jobs. It will take committed leadership and management to support and foster that kind of thinking and work.
The fundamental challenge for our leadership will be to make these goals do more than just be words on paper, but principles that drive the day to day work of all EEOC staff. I thank the Chair.
CHAIR BERRIEN: Thank you Commissioner. Commissioner Barker?
COMMISSIONER BARKER: Thank you Madam Chair. I want to join with everyone else in showing appreciation to the extensive effort that has gone into developing this Plan. Countless people were involved and gave their good time and talents, and I certainly recognize and appreciate those talents.
That said, let me just cut to the chase and say that I regret that I am going to vote against this Plan, and that decision comes as no surprise to any of my fellow Commissioners or to the Chair. We’ve had very honest and open discussions. The Plan simply does not reflect my view of the Commission or its priorities at this time. I understand that I am in the minority in that, and I appreciate the views of the majority, but I simply do not share them.
Let me say that I am quick to recognize that the Plan does contain a number of good points. I hope, for example, that in the end, what the Plan allows us to do is to stop evaluating professional lawyers on the basis of the number of lawsuits they file. That is wrong. Lawyers are professionals, they should not be judged by the numbers but by the quality of their work. We have very highly sophisticated, highly talented lawyers who should not be evaluated by the numbers.
I also appreciate the fact that this Plan gave a nod to the work of the Small Business Task Force and the recognition that, through the Small Business Task Force, we are seeing that we have work to be done, particularly as involves the social media and our use of social media, which we all acknowledge we are way behind the eight ball on.
That said, that speaks to certain parts of the Plan. It does not speak to the core of the Plan. So let me talk briefly about the core. This is, as you all know, a time of -- that we are existing and working in a depressed economy and in this Agency and every federal agency, we’re having to do a lot of very strict belt-tightening. And when you have to tighten your belt, then I think what you have to do is go back to look at your core mission; and the core mission of this Agency, this independent, bipartisan Agency; is to prevent discrimination from ever occurring, to prevent discrimination. That is our core and our principle mission. It is not to, “stop discrimination after it has occurred;” it is not to, “provide a remedy after discrimination occurred.” It is to prevent discrimination from occurring in the first place. It is to prevent any single act of indignity, of discrimination, which is what discrimination is, from ever occurring to the first person.
So to the extent that our -- this Plan does not provide that as its first and proper and foremost strategic objective and priority; the Plan simply and profoundly misses the mark. I'll hold the rest of my comments until after the meeting. Thank you very much.
CHAIR BERRIEN: Thank you Commissioner. Commissioner Feldblum?
COMMISSIONER FELDBLUM: Thank you Madam Chair. I am very pleased that we are voting today on the Commission's Strategic Plan for Fiscal Years 2012 to 2016. I have often said over the past six months that I never thought I would come to love a law called GPRA, the Government Performance and Results Act, but I have.
The law makes us stop, okay, not in the name of love, but in the name of accountability and forward-looking thinking. GPRA requires us to think about and to articulate our statutory mission. It forces us to identify the goals that we are seeking to achieve as an agency; the outcomes we hope will result from achieving those goals; and the ways in which we measure whether we are actually achieving those outcomes.
And then the law gives us the opportunity, indeed it forces us to consider whether we have identified the most useful goals for achieving our statutory mission; whether we are reaching for the outcomes that correctly reflect achievement of those goals; and then whether we are measuring the right things to determine if we are being successful.
It all starts with our statutory mission, and our statutory mission is simple and breathtaking. The Commission is authorized by Congress, “to prevent any person from engaging in any unlawful employment practice”. That's our mission. And Congress has also told us very specifically in the statute, how it wants us to go about that job of preventing any person from engaging in any unlawful employment practice. It has created what we now call our administrative system, that is, the investigations and conciliations that we engage in after charges are filed with us. It includes a mediation system that we created as an Agency; and it involves the litigation system because Congress authorized us to litigate cases when conciliation fails.
Congress also gave us the responsibility to adjudicate claims of employment discrimination brought by federal employees, and to educate individuals about their rights and responsibilities under the employment non-discrimination laws of our country. This is how Congress has told us to go about our statutory mission.
Now the fact that the statute places the obligation to engage in this work on, “the Commission” – “the Commission” shall receive charges; “the Commission” shall investigate; “the Commission” shall engage in conciliation is what the statute says. The fact that the statute has placed this obligation on “the Commission” is critical. “The Commission” consists of five Commissioners who are appointed by the President, who has been elected through the political process, and who are confirmed by the Senate.
Of the five Commissioners, no more than three of us can be from the same political party. Congress has built a commitment to the concept of bipartisanship into the sinews of this Agency. How effectively we carry out that concept is of course, up to us.
But we, as five members of the Commission, obviously cannot do all of this administrative litigation and adjudicatory work ourselves. Our success in carrying out the statutory mission Congress has placed on us, depends on the people of the Commission. That includes the people sitting in the room today, the people watching this meeting on their computers right now, the people who might watch this meeting in the future after you tell them how great it was, and the people who might never watch this meeting.
The Commission is only as good as the people who work at the Commission. For that reason three values underlie this Strategic Plan. These values operate horizontally, across the five members of “the Commission”. These values operate vertically from the Commission to our staff here in headquarters and across the country, and these values operate from our staff outward to everybody they come in contact with.
First, a commitment to justice, our nation's employment non-discrimination laws reflect Congress's substantive vision of justice in our nation's workplaces. This is not our personal vision. This is the vision of the people as enacted by their democratic representatives. We must have an unwavering commitment to carrying out that vision of justice.
Second, accountability, we have been given an important mission and been entrusted with significant power. We must have mechanisms that hold us accountable to that mission and power. Our actions must engender trust and confidence in everyone we come in contact with: charging parties, respondent employers, human resources staff, federal employees, federal agencies, lawyers, and judges.
And third, integrity, this to me is the mirror image of our commitment to carry out the laws as passed by Congress. We have an obligation to be objective as we investigate charges in the private, state and local government sectors. If we conclude that unlawful discrimination has occurred; we have an obligation to be strong advocates for those who have experienced such discrimination; and we have an obligation to be neutral and fair adjudicators in the federal sector.
This Strategic Plan is a reflection of those values. This Plan focuses less on measuring numbers for numbers' sake, and more on measuring what we need to do in order to achieve our long-term goals. This is essential if we are to be proactive as an agency and not reactive. And in this day and age of limited financial resources -- and I bet you're going to hear every single one of us say this; -- we need to be intelligently and strategically proactive.
Thank you Madam Chair. I will thank you even more later for giving me this job. But I believe this Plan sets us on a course to be an even better Agency than we are today. I will be very pleased to vote for it.
CHAIR BERRIEN: Thank you Commissioner, and Commissioner Lipnic.
COMMISSIONER LIPNIC: Thank you Madam Chair. Good morning everyone. Before we get started, as my colleagues have done, I want to thank everyone at the Commission who participated in the strategic plan process. Special thanks goes to our strategic plan and GPRA guru, Deidre Flippen, and to Chief Operating Officer, Claudia Withers and Joi Chaney in the Chair's office, and to Commissioner Feldblum and her Chief of Staff, Sharon Masling.
I know that dozens of individuals throughout the agency participated in countless meetings, including representatives from each Commissioner's office, the General Counsel's Office, the Office of Legal Counsel, the Office of Field Programs, OFO and many others, and in fact the Strategic Plan before us is the product of their thousands of hours of work and dedication.
I also want to thank the external stakeholders who took the time to review the Strategic Plan, some of whom are in our audience today, and submitted comments for the Commission to review. Without the effort of all stakeholders, internal and external, this endeavor would not have been possible. Without question, the Commission's work depends on the talented and dedicated personnel from across the country. We cannot meet our statutory mandate of equal employment opportunities in the workplace without their hard work and commitment.
Overall I support the Strategic Plan. First, it is crucial for the Commission to establish priorities and to train its staff to investigate all charges in an efficient, proper and consistent manner; and to litigate where we will get the most impact, and effectively serve those who come to us with their charges.
While the Strategic Plan in and of itself cannot achieve our goals, I believe that the inclusion of timetables for Strategic Enforcement Plan, and a quality control plan, have the potential to force the Commission to analyze and implement various strategies to achieve our goals. As with the Strategic Plan, public input will be critical to shaping the future of the Commission, and I look forward to working again, both with our internal and external stakeholders on these upcoming plans.
Second, rigorous implementation of the priority charge handling procedures should help the Commission to reduce its backlog of cases. Justice delayed is justice denied, and simply put, we are not currently doing a good enough job on this front. Charges at intake must be properly categorized; C-charges should be dismissed quickly; B-charges should be reassessed at various points in the investigation, including when a position statement is received; no B-charge should languish in hopes that one additional piece of evidence will convert it into an A-charge; nor should the reverse be true. Investigators must be trained and empowered to correctly close or reclassify B-charges when legally appropriate.
That said, it is critical that the reimplementation of PCHP not artificially incentivize misclassification of charges; that is, reclassifying B-charges as A for the sake of meeting a numbers goal or vice versa.
Third, while enforcement is critical, it is also crucial for the Commission to educate the public, employers, unions, employees, about their rights and obligations under the law. Many times people do not know the basics of employment discrimination law. Small businesses do not have attorneys either on staff, the financial resources for outside counsel, or the time to attend seminars on employment discrimination. To a certain extent, the inability to reach these segments of the population is a failure on the Commission's part. We need to tailor and deliver our Commission's message to a workforce that will continue to undergo dramatic demographic shifts, now and in the future, through increased outreach using both traditional and non-traditional means.
Fourth, it is crucial that Commission employees interact with the public in a timely, consistent and professional manner. While talking with stakeholders it has become apparent that the conduct of investigations can vary widely throughout the country. In that respect, and in certain instances, the Commission is falling short of our obligation to handle every charge in front of us with the highest degree of professionalism.
The long history of discrimination in this country, and the stigma attached to it, demand no less. As such, the Commission must ensure consistent, quality, neutral unbiased investigations around the country. This is especially so when the Commission is focused on systemic cases and aims to challenge employers about practices or policies on a national basis.
While I support the Strategic Plan overall, that does not mean I don't have some reservations about some of its themes. Our focus on systemic investigations and litigation must not create an environment that fosters or encourages any excessive investigations or litigation. Given the Strategic Plan's focus on increasing systemic litigation, it is important that investigations are not artificially expanded for the sake of filling the Commission's numbers docket. Over the past year or so, certain courts have rejected the Commission's attempts to expand single charge filings to systemic investigations.
While every case has its unique facts and presentation which determines its outcome; we should not dismiss these cases as one-off, and the implications of those adverse decisions should be carefully reviewed by the Commission, particularly as we move forward with the Strategic Plan.
Another consequence may be to lessen the importance of alternative dispute resolution. In my conversations with respondents and people in the field over the past year, many have complimented the EEOC's mediation program as being extremely successful. While the Commission will operate at best with flat funding over the near term, it does not make sense to reallocate funds from a successful program into other areas which may not be as successful. That is why I believe it's important to fully fund our mediation program, effectively train Commission employees and hold all employees to performance measures from any future quality control plan.
On balance, I support the Strategic Plan. I think it is very ambitious. If implemented, it has the potential to improve the Commission, its processes, its ability to serve the public. Implementation will not be easy, will certainly run into opposition both inside and outside the Commission, but I believe, if successful; it will help the Commission do its part to achieve equal employment opportunity in our nation's workplaces. Thank you Madam Chair.
CHAIR BERRIEN: Thank you Commissioner. And now we will turn to presentations on the EEOC Strategic Plan, and I'll ask for Claudia Withers, the Chief Operating Officer of the EEOC, and Deidre Flippen, Director of the Office of Research Information and Planning, to take their seats, and I will also note that Commissioner Feldblum will remain with the Commission but will follow the presentations of Ms. Withers and Ms. Flippen and make a presentation based upon her work on the performance measurement group and in leading the strategic planning process together with Claudia Withers. Thank you and we’ll start with Claudia.
MS. WITHERS: Thank you Madam Chair. Please, I’ll start out by asking for forgiveness for my voice. I’m recovering from a cold. Good morning Chair Berrien, Commissioners, General Counsel and Legal Counsel. I am happy to be here this morning to discuss the EEOC's Strategic Plan for Fiscal Years 2012.2016 along with my colleague, Deidre Flippen.
As the Chief Operating Officer of the Agency, I am designated by the Government Performance Modernization Act of 2010 as the Agency's Performance Improvement Officer. Deidre Flippen is the Deputy Performance Improvement Officer.
As you know, in July of 2011, the Chair announced the launch of the planning process, which led to the Plan currently before you for approval. The overall intent of the Plan is to guide the Agency in fulfilling our mission of enforcing federal laws, prohibiting discrimination and promoting equality of opportunity in the workplace, and the Plan is intended to communicate internally to our stakeholders and to the general public, that the EEOC is committed to mission.critical thinking, transparent governance, interagency collaboration and public participation.
We believe that the process that we engaged in embodied the above principles. Our Chair established a Strategic Planning Workgroup, which I chaired, to oversee the development of the Plan, and a Performance Measurement Workgroup, chaired most ably by Commissioner Feldblum to hone in on the indicia that we would use to gauge our progress as an Agency.
Each of those groups included field and headquarters staff with a broad range of expertise and experiences with the Agency's programs. Each also included a representative from the EEOC's union.
From August 2011 through November 2011, the groups met individually and together to fashion a vision and mission, strategic objectives, goals, strategies and performance measures, to chart our path for the next four years. We set up an email box to hear from EEOC employees throughout the process. The groups reviewed and discussed our current strategic plan, Commissioner Ishimaru's draft strategic plan and the strategic plans from other agencies and institutions.
It was my pleasure and honor to work with all the committed EEOC employees, in both groups. I want to thank them and the many other EEOC employees we sought out for wisdom, information and input. Their willingness to participate in this process and to continue to do their day jobs, was, and is, very much appreciated.
Now we began this process with briefing you, the Commissioners, to ensure that we would hear from you at the outset. We continued to check in regularly with you and your staffs as we move through the process. Deidre and her colleague, Dona Bland, interviewed Commissioners, Office Directors, Union Leadership and others to ensure that we understood their views about what a plan should look like.
Deidre, Commissioner Feldblum and I, individually and together, briefed the District Directors, Regional Attorneys, the National Labor Management Council, and first-line managers. We sought input from a range of stakeholders and Congress, EEOC managers, employees and the public, and last month, as you know, posted our draft plan on our external website. We also worked very closely with OMB to ensure that our Plan was in sync with the relevant statutory requirements. We received written input from stakeholders and each of your offices received copies of those comments.
As you know, we took many of the comments into account as we finalized the document before you today. A number of those comments will be useful as we move forward to the Strategic Enforcement Plan, if this Plan is approved, and some will be useful to the ongoing operations of the Agency. Bottom line, we took all of them very seriously and will continue to look at them for guidance as we go forward.
I wanted to briefly talk about some highlights of the Plan. It restates our Agency's mission as to stop and remedy unlawful employment discrimination and identifies as its vision, justice and equality in the workplace.
The Plan contains three strategic objectives: combat employment discrimination through strategic law enforcement; prevent employment discrimination through education and outreach; deliver excellent service through a skilled and diverse workforce and effective systems.
The Plan includes a number of outcome goals, strategies and performance measures as you know. I'm going to highlight just a few at this time, although I believe that each strategy and performance measure is important.
The Plan requires that we create a Strategic Enforcement Plan that you’ve already heard about that will establish priorities for enforcement and integrate our investigation, conciliation and litigation responsibilities in the private, state and local government sectors; our adjudicatory and oversight responsibilities in the federal sector; and research policy development and outreach activities in all sectors. We will create a quality control plan for our private and state and local government sector activities, which will develop appropriate criteria for measuring the quality of investigations and conciliations. We will develop a federal sector case management plan which will enable us to bring consistency and greater efficiencies to the handling of federal sector complaints. We will develop a federal sector quality control plan which will, as within the private sector, develop appropriate criteria for measuring the quality of hearing decisions and appeals.
We will also begin a more focused targeting of some of our already considerable education and outreach activities to vulnerable workers, underserved communities and small and emerging and new businesses. And while it's unusual to include operational matters in a strategic plan; we included measures on workforce development and planning, including identifying, cultivating and sustaining a skilled and diverse workforce to underscore our commitment to addressing the Agency's internal challenges so that we can better serve the public. And to this end, the Plan also includes a measure aimed at directly improving our customer service.
I believe that the Agency has begun some important work in the above strategies and many of the others. We are not starting from scratch; we are building on our successes. As I have indicated, once a plan is approved, we move to implementation. Each of the performance measures requires -- includes timelines for what we want to accomplish in the next four years.
The Chair will soon be naming workgroups for the Strategic Enforcement Plan and the Quality Control Plan, and we will continue to use the approach that we started to get to this document, including the Commission, EEOC employees and stakeholder engagement throughout the process.
We believe that what we have done -- we have done what the Chair asked us to do: to develop an effective Strategic Plan that can move us forward as an Agency. Equally important, we believe that our process has set up a way of working together that will ensure an ongoing exchange about our goals, and ultimate success, in the implementation of the Plan. We hope you agree.
I look forward to answering your questions and if approved, to working with all of you to implement this ambitious Plan. Thank you.
CHAIR BERRIEN: Thank you. Deidre Flippen?
MS. FLIPPEN: Good morning Madam Chair, Commissioners, General Counsel, Legal Counsel. My name is Deidre Flippen. I am the Director of the Office of Research, Information and Planning. I am the Deputy Performance Improvement Officer for the Agency.
I would like to provide an overview of the Agency's new Strategic Plan for Fiscal Years 2012-16, but believe a brief description about the legislation that provided the impetus for EEOC to move expeditiously to develop a new strategic direction and plan to implement it, would be helpful.
I refer to the 1993 Government Performance and Results Act, known as GPRA, which required federal agencies to implement an overarching strategic plan to guide each agency as it engaged in activities to achieve the respective mission.
Under GPRA, agencies were required to incorporate several elements in their plans, including the identification of general goals and objectives, and the methods an agency intended to use to achieve them. With the strategic plan as the overarching document; agencies were also required to prepare a fiscal year performance plan that contains specific performance measures and annual target goals that the Agency expected to achieve during the year. Finally, the Agency was required to prepare a performance report describing how well it achieved its goals in the prior fiscal year.
Eighteen years later, on January 4, 2011, the GPRA Modernization Act of 2010, referred to as GPRAMA, was enacted. GPRA modernized and refined the requirements of GPRA to ensure more reporting and accountability by agencies to the Office of Management and Budget, related to performance reviews of federal policy and management priorities. It codified the requirements of agencies to establish chief operating officers, performance improvement officers, and the performance improvement counsel across government, in order to improve the performance effectiveness and efficiency of government, and for other purposes. In short, it established a framework for federal agencies to comprehensively address performance improvement throughout the federal government.
As part of the strategic planning process, we incorporated all of the key provisions established under GPRA and GPRAMA for the development of all agency strategic plans, including a comprehensive mission statement; a description of general goals and objectives; a description of how goals and objectives are to be achieved, including internal agency processes and external interagency efforts; a description of how goals and objectives include views; suggestions obtained through congressional consultations; a description of the relationship between goals and the annual performance plan, and those in the strategic plan; identification of key factors external to the Agency and beyond its control, that could affect achievement of its general goals and objectives; a description of program evaluations used; and a schedule for future evaluations.
We also met the following additional requirements under GPRAMA: to consult with Congress, including the majority and minority views from the appropriate authorizing appropriations and oversight committees; and to solicit and consider the views and suggestions from entities potentially affected by, or interested in, the Agency's plan; established a chief operating officer in the Agency who would be responsible for improving Agency management and performance through the use of strategic and performance planning, measurement, analysis, regular assessment of progress, and the use of performance information to improve results; establish a performance improvement officer in EEOC to advise and assist the agency head, and the COO, Chief Operating Officer, to ensure that the Agency's mission and goals are achieved; update our Agency strategic plan concurrent with the publication of the Fiscal Year 2013 budget.
As required, the Plan will now cover a period of four years, following the fiscal year in which the Plan is submitted. As part of our continuing strategic planning obligations under GPRAMA, we plan to consult with the appropriate committees of Congress at least every two years; coordinate with OMB to establish a federal government performance plan to be submitted with each budget -- for example the annual performance budget; provide a description of the relationship between the goals and the annual performance plan and those in the strategic plan in the Agency's performance accountability report.
With that background in mind, I would like to provide you with a brief overview of EEOC's new Plan, Strategic Plan for Fiscal Years 2012-16. In the current Plan, the Agency has restated its mission as to stop and remedy unlawful employment discrimination, and adopted a new 21st century vision: Justice and Equality in the Workplace.
To accomplish this mission and achieve the vision, we developed three objectives with the following anticipated outcome goals: the first, combat employment discrimination through strategic law enforcement with outcome goals were one: have a broad impact in reducing employment discrimination at the national and local levels; and two, remedy discriminatory practices and secure meaningful relief for victims of discrimination; two, prevent employment discrimination through education and outreach with outcome goals where, members of the public understand and know how to exercise their right to employment free of discrimination and two, employers, unions and employment agencies, covered entities, better address and resolve EEO issues, thereby creating more inclusive workplaces; and three, deliver excellent and consistent service through a skilled and diverse workforce and effective systems, with an outcome goal being that all interactions with the public are timely, of high quality and are informative.
The Plan also identifies strategies for achieving each outcome goal and identifies 14 performance measures for gauging our progress as we approach fiscal year 2016, including a measure for gauging the contribution of our Fair Employment Practices Agencies and meeting the Agency’s long-term strategic goals.
Because this Plan will require significant changes in the Agency's approach to fulfilling its mission, we will need the next two years to establish new baselines in order to finalize the milestones and set targets in the outlying years for the new measures. Over the course of the next four years, the Plan will be updated in the Agency's Annual Performance Plan and Report.
I hope that this information is helpful. We look forward to your consideration and approval of the Agency's new Strategic Plan for Fiscal Years 2012-16. Thank you. I will try to answer any of your questions.
CHAIR BERRIEN: Thank you. And now I'll turn to Commissioner Feldblum.
COMMISSIONER FELDBLUM: Thank you Madam Chair. Madam Chair and my colleagues on the Commission, thank you so much for the opportunity to provide some additional information about the development of the Strategic Plan and in particular, about the very hard work of members of the Strategic Planning Workgroup and the Performance Measurement Group.
So first I want to extend my thanks to you Madam Chair for asking me, last June, to chair the Performance Measurement Group. I remember sitting in your office, just about a year prior to that time, August 2010, talking with you about some of the things I had learned during my visits to about eight EEOC offices during my cross-country road trip.
I talked with you about some of the new issues and lingo I was learning, categorizing cases, closing cases, investigations, mediations; and we talked about the measurements that we were using as an Agency. I remember saying that measuring how many cases we closed would simply tell us how many cases we had closed. It wouldn't necessarily tell us how much discrimination we had stopped, or how much unlawful action we had remedied. And you said to me, "Yes, we need measurements that matter." That became a mantra for me, measurements that matter, and as the months went by and as I did my work here and as I continued to visit offices across the country; I educated myself about what we were doing at the Agency and how we were doing it, always with that mantra in mind. So I was grateful when you asked me last June to chair the Performance Measurement Group as part of this Agency's strategic planning process. I may not have realized how much work it was at the time, but I am still grateful and happy that for some reason, I do have some Energizer Bunny type of energy in me.
I want to thank you as well for the work that you and Chief Operating Officer, Claudia Withers, put into planning the membership of the Performance Measurement Group and the Strategic Planning Workgroup. We all benefitted from that careful planning; in particular, the Executive Team that put hours into coordinating and writing the strategic plan, Chief Operating Officer Withers, and the ever-energetic, Joi Chaney, who I hope will wave her hand here so you can see which one she is, thank you, from your staff, Deidre Flippen and the ever-calm, Dona Bland, from ORIP, and would you just raise your hand Dona, so people can see you, and me and my incomparable Chief of Staff, Sharon Masling, this Executive Team benefitted from your careful planning of those groups.
To everyone listening, the names of the EEOC's staff who served on these two groups are listed on pages 38 to 39 of our Strategic Plan, and I commend those names to your attention. There were 32 individuals between the two groups, and they covered the entire range in terms of subject matter expertise and geography. They did an amazing amount of work and deserve an amazing amount of credit.
To get some sense of the work these groups did, I think it is useful to compare the strategic objective and performance measures of the strategic plan we are currently operating under, that our COO, Claudia Withers has to make sure is operating and our Director, Flippen has to report on every year. So let's compare those to the elements of this Plan.
The Commission's Strategic Plan for FY 2012 -- from FY 2007 to '12, our current Strategic Plan, has one strategic objective: it is justice, opportunity and inclusive workplaces. Now, no one can contest the importance of justice, opportunity or inclusive workplaces. But the Strategic Planning Workgroup this year spent significant time developing the three concrete strategic objectives that Chief Operating Officer Withers has described for us. These three concrete objectives -- one, combat employment discrimination through strategic law enforcement; two, prevent employment discrimination through education and outreach; and three, deliver excellent and consistent service through a skilled and diverse workforce and effective systems. These three concrete strategic objectives are what create the substantive framework that enables us to start figuring out relevant baselines and performance measures.
The Strategic Plan before us also has specific outcome goals and strategies. The strategic planning workgroup wrestled with coming up with the correct outcome goals, with the appropriate strategies for achieving those outcomes, and towards the end of the process; members of the performance measurement group got to join in that fun and help to refine both the outcome goals and the strategies.
And finally, the strategic plan we are currently operating under has a series of numbers-based measures. It has one long-term annual performance measure, which is, “The percent increase in the number of individuals who are benefitting from improvements in their organizations because of the EEOC's enforcement programs, together with the companion efficiency measure;” that is, it uses the same data but presents it as "The percentage increase in the number of individuals benefitting from EEOC's enforcement programs, per each agency’s FTE." So that's one overall numbers-based measure.
The current plan also has six data-driven measures calculated on an annual basis: one, the percentage of private sector charges that are resolved in 180 days; two, the percentage of federal sector hearings that our -- AJ's hear -- that are resolved in 180 days; three, the percentage of federal sector appeals heard by our Office of Federal Operations, that are resolved in 180 days; four, the percentage of investigative files that meet certain quality criteria; five, the percentage of parties who are confident in EEOC's mediation program as evidenced by surveys; and six, the percentage of lawsuits that are successfully resolved.
These are the eight performance measures that are in our current strategic plan. They are not bad measures. They are not problematic measures in their own right. But none of those measures are in the Strategic Plan that we are voting on today. Because at times, those measures have had the unintended consequence of shifting our focus from achieving our big-picture goal of ending employment discrimination, to a more micro-focus on how quickly cases have been resolved and closed.
These measures also removed critical attention from the larger conceptual framework that the Commission had already developed to focus its efforts on having the biggest impact with its limited resources. The Commission had done this work through the creation of a Priority Charge Handling Procedures in 1995, through the adoption of a National Enforcement Plan in 1996, and the implementation of a Systemic Initiative in 2006.
Our working groups decided that the Agency needed a back to the future moment in which we revitalized and updated this framework and built on the goals articulated in those plans.
Towards that end, there are three game-changing performance measures in this Plan, and I agree with COO Withers that actually every single one is important. We made sure. How many measures can we do? But three game-changing: one, the adoption of a new Strategic Enforcement Plan to update the 1996 National Enforcement Plan, and I appreciate the comments of Commissioner Ishimaru in terms of how we need to think about that over the next six months; the development of a quality control plan for our investigations and conciliations that builds on a PCHP system; and the creation for the first time of a categorization system for federal sector hearings and appeals, together with the quality control plan.
At bottom, what we have done in this Plan is to take a step back. We have created structures and deadlines for ourselves to collect the necessary data in order to establish baselines, intelligent baselines in various areas; and we have then created mechanisms that will enable us to move those baselines up.This Strategic Plan is optimistic, and yes, Commissioner Lipnic and my colleagues, it is also ambitious. But I believe it is a very, very doable Plan. If we do it well, and I absolutely believe we will, with our leadership; we will ultimately measure the things that matter. Even more importantly, we will be well on our way to achieving our mission of stopping and remedying unlawful employment discrimination. Thank you and for the first time I'm also happy to be on the other side, of answering questions. Thanks so much.
CHAIR BERRIEN: Thank you to the presenters and we will turn now to the questions, comments and statements of the members of the Commission. I will remind all colleagues that we are using our timing lights and the yellow light will appear when one minute of the allotted time remains.
We will begin with Commissioner Ishimaru.
COMMISSIONER ISHIMARU: Great, thank you Madam Chair. As I said in my opening statement, I believe the Strategic Enforcement Plan will be one of the key drivers here to whether our Strategic Plan is successful and I think from my experience I’ve seen and I’ve learned how the strategic plan in place really drives everything. It drives budgets; it drives how people operate; it drives how people perform; it drives what incentivizes people to do the job. I can't begin to tell you the numbers of conversations that I have had with people over the years who have said, “You know, I want to do the work. I want to know what it is. Tell me what to do and I'll do it.” And when we’ve been able to give people metrics and systems that they knew this was the goal, they would perform. And I think that reflects on the talent of our employees throughout the nation, that they want to do good work, they want to be outstanding; yet sometimes they can't be, because they really don't know what it is. The objective gets muddied. And I am hopeful that in the strategic enforcement planning process, that we will be able to clarify what our priorities are.
You know, I don't think the -- some of the statements we heard at the beginning are necessarily in conflict. I happen to agree with Commissioner Barker that we should be attempting to prevent employment discrimination. We need to do that on a broad-scale basis.
One of the lessons that I’ve learned during my time here is how employers, and especially big employers, now understand what their obligations are under the law. They’ve created infrastructures to deal with employment discrimination; they don't want it to occur. They want to comply with the law and I think that really helps us do our job in preventing employment discrimination from happening; and gives us hopefully, over the long run, less need to have our enforcement apparatus out there to respond to charges that come before us. But we can't do one thing at a time, and as I’ve learned during my time in the Acting Chair's office; that there's all these balls in the air and you could point to one ball and say that's the most important thing, but you’ve got to keep all the other balls up in the air at the same time. And I must say, that during those times when we tried to say, “that's the important ball,” the other balls are boom, boom, boom, boom, boom, and you think, “Whoa.” You need to figure out a way to do the juggling at all times, and I'm hopeful, during the strategic enforcement planning process, that we will further refine what our priorities are.
Commissioner Lipnic talked about the mediation program that I too believe is a very valuable program. But in the course of all this, the question is, you know, how do you juggle all these balls in the air? How do you do this and do it well, but yet so that the priorities that generally we all agree on, should be done, and you know, how do you do this all at once? And that I think is part of the struggle.
One of the interesting notes that I had with Commissioner Lipnic at the start of this process was that both she and I have served in various government positions for a while now, and we have an appreciation for all of the good government can do, if it's done well, and I think one of the challenges in front of us is how do we harness our talents and our energies here at the Commission to do well and to do it right and to do it in a smart-thinking and forward-thinking way?
So I'd like to know what your plans are over the near term, especially on the -- for the development of the Strategic Enforcement Plan? If you could talk, Claudia, about what the near term plans are and how a Strategic Enforcement Plan will be developed, assuming that we pass the Plan today.
MS. WITHERS: Thank you, Commissioner. You'll see in the Appendix to this Plan a broad timeline for how we propose to develop the Strategic Enforcement Plan. Indeed, if this Plan is approved, the Strategic Plan is approved; we get about a week and a half off, and in March the Chair will be naming a Strategic Enforcement Plan working group. The broad timeline for passage of a strategic plan is by September 30th, the end of this fiscal year. During that timeframe, you’ll see broadly from the timeline, we’ll be hearing from a range of stakeholders. We’ll be hearing from employees, the folks who do the work of the agency, about trends they are seeing in employment discrimination. We'll be talking to folks inside and outside the Agency. We'll be looking at research and then developing a draft for the Commission to think about and for everybody to comment on.
So the process starts very quickly, assuming the passage of this Plan. That is our goal. Similarly, the Quality Control Plan, which has as its long term aim, passage by February 28th Fiscal Year 2013, will be a bit of an overlap. We are going to start a timeline that starts sometime in the summer to begin that process because we’ll see a lot of that work will be synergistic, will be interconnected. So that's the broad plan. We will -- we were thinking already about how to make that happen, but that's how we intend to do it. I would also add that, even as we were doing this process, I took the liberty of talking to office directors and others who’ve been working with us and saying, “Look at the draft, see what we are saying, start thinking. We are going to need your best -- continued best efforts and judgment and wisdom to help us get to the next stage.”
COMMISSIONER ISHIMARU: And I think that point's a good one because it's a continued best effort. You know, how do you keep this energy from this Plan moving forward, so it governs how we run the Agency going forward, so that this isn't just a static moment in time, but that will govern how the Chair and the office directors and others, manage the Agency and manage people under their direction.
That I think is really the challenge. How do we set goals that will push people to do the things we agree we want to do, and not just to work towards a number, because as we have all seen, sometimes numbers drive us in places we don't want to go, and I think that, I think, is one of the big challenges as a management matter, we have in front of us. I thank the Chair.
CHAIR BERRIEN: Thank you Commissioner. Commissioner Barker?
COMMISSIONER BARKER: I don't have any questions thank you.
CHAIR BERRIEN: Thank you. Commissioner Feldblum?
COMMISSIONER FELDBLUM: So I have no questions for myself. Actually, I have many questions for myself, but really not related to the Strategic Plan. I just actually want to say two other things that come off of Commissioner Ishimaru’s question. I do think that the timeline that is on Page 40 of our Strategic Plan, and actually I guess I do have a question as to when the Strategic Plan will be posted on the website for people to be able to download because I think that will be an important thing for people to know. But when it is, and you can download it, on page 40, there is a timeline for both the Strategic Enforcement Plan and the Quality Control Plan. I've already made my personal pitch to the Chair that I believe she should be chairing the Strategic Enforcement Plan because it really is so important and I just sort of figure that even though she is so busy, this would be a good excuse for you to say, “I'm sorry I can't do that speech, because I've got a meeting of the strategic enforcement” -- But anyway, I certainly, you know, I -- but I certainly know the amazing planning that you put into the other groups you will be putting into this, so I'm sure we are going to have a great group for both.
But I do want to call attention to the fact that there will be a public town hall meeting for stakeholders to just come and give their comments sometime between April and June for the Strategic Enforcement Plan, sometime between September and November 2012 for the Quality Control Plan, quality of investigations and conciliation, so that’s one. The other thing I would mention is, for those folks who have been to these meetings, you know that I almost always make a pitch for my Twitter account -- follow me @chaifeldblum -- but more -- and I have gone up from 399 followers to about 420 just in one week, so clearly – but, the more important thing is that we are going to develop a social media plan for the Agency overall, because the bottom line is for a lot of people, they get their information now through these social media techniques, and we need to drive them to the website that will then give them that important information about what their employment rights are if they are an individual, what their employment obligations are if they are a business, and we have so much good information that our staff has written and we just need to now get it out there, and I really do believe that, you know, the two technology pieces I hope happen from this Plan: one is the social media; and the other is in fact a better way to track our charges.
I remember when I went on my road trip and I just drove across the country, California to D.C., visited offices, and I couldn't believe the amount of time that investigators told me they were spending on the phone telling people the status of their charges, I mean, just a lot of time. And I was thinking, if I can track my UPS package, why can't I track my charge? Now, once I got on, I mean once I spent more time, I realized how you can't just snap your fingers and make something happen in the government, especially when you don't have tons of money just you know, flowing in. But we have an amazing, amazing OIT staff now, information technology staff, they have been working up, and you can see in this Plan, we already have -- we are already in what's called the requirement stage, which is a technical term for what we would require to have a tracking system, an overall system that would help both charging parties and respondents. So I really do hope that we will see some changes from that. So, thank you Madam Chair.
CHAIR BERRIEN: Thank you Commissioner. Commissioner Lipnic?
COMMISSIONER LIPNIC: Thank you Madam Chair. I will second the comments of Commissioner Feldblum about the one focus in this Plan on social media and I think Commissioner Barker mentioned this. I think that once we have a vigorous social media plan and operation in place, that will certainly allow the Commission to take its outreach and education to a much greater level than where we are today.
I just had one question, and Deidre, this is actually in your testimony, and this is to go all GPRA on you here, but your sentence here is -- because it's such a GPRA sentence -- "because this Plan will require significant changes in the Agency's approach to fulfilling its mission, we will need the next two years to establish new baselines in order to finalize the milestones, to set the targets in the outlying years for the new measures."
So we have baselines, milestones, targets, outlying years and measures. And I wonder if you could -- and I think we are, you know, we have left out outcome and output and all of that stuff, but I wonder if you could just sort of translate that into English in terms of the next two years?
MS. FLIPPEN: You will note from just looking at the measures themselves, that they are -- in many of them you see the letters TBD, that's to be determined. And the reason that that's there is because we want -- in this Plan we wanted to be sure that the measures that we develop are useful to managers and that we don't rush to put numerical values on the measures and that we avoid unintended consequences, as some of the Commissioners have mentioned, that drives us in the wrong direction.
And one of the things or lessons learned I think from the current draft, is that we did do that, that we -- there was a rush to put numerical values on, on the measures, and that drove performance in areas that we didn't want, and that, that -- our program offices, our program office directors, our field office directors, our managers and supervisors out there in the field, who are responsible for implementing the Plan, often didn't have the resources that they needed to keep up with the numbers as they increased each year. There wasn't a recognition of, or an alignment with the budget, on an annual basis, and here, we have tried to avoid that by stepping back and saying, “let's take our time and develop those annual targets,” what we are going to accomplish in 2012. So we have the milestones or targets – they’re kind of interchangeable to some extent -- to give us our opportunity to have some intelligent discussion internally with the program offices and the people who will have to implement this, as to what those targets should be.
And that's really what that's all about, and I'm hoping that, as Commissioner Feldblum said, that ultimately, if we do put any quantitative measures or whatever measures we come up with, that come out of the Strategic Enforcement Plan and its priorities or the Quality Control Plan; that they'll be measures that matter. They’ll be measures that matter to our mission. They’ll be measures that will really help us be able to see that we are making progress and not artificial, not artificial progress. I think that's, that's what we’re trying to capture here.
So we're moving a little slow this time, and not rushing, not letting perhaps what other agencies are doing, force us to do the same thing, and not move forward, so that's the answer.
COMMISSIONER FELDBLUM: Can I just add to that answer? I think it's useful to take a look at one example. So for example, in our current plan we have a performance measure, "The percentage of investigative files that meet certain quality criteria," okay? So that's a performance measure and we aim to have a certain percentage meet it. Now we have consistently come out at a performance rate of about 90 percent, you know, that 90 percent of our investigations meet this quality criteria. So we always do very well on our performance accountability report on that. But when the groups dug into that to look at, okay, well what were the criteria at which we were rating, getting ourselves so high?
Well, basically, the criteria were whether the charge had been correctly categorized within the PCHP system, whether the charge had been correctly filed and updated in the Agency's data system, and in fact, we were hitting 90 percent and more on those. But they didn't, for example, measure some of the things you talked about, whether the charges had been appropriately reassessed on a timely basis, how efficient and timely the investigation had been, what the investigation actually consisted of, and whether the investigator correctly applied the law to the facts in the case. I mean that just wasn't there in the criteria.
But we could not, our performance measurement group, couldn't say, oh, well, now we'll have X percentage of each of these criteria. I mean that's -- you have to start with figuring out the baseline of where are we right now in terms of quality.
So for FY 2013, by the end of FY 2013, which is basically next October 1 -- this FY 2013, starting October 1, right -- we developed the Quality Control Plan that establishes the criteria and we’ll vote on that Quality Control Plan on February, as COO Withers said, February 2013.
In FY 2014, once we have that Plan, we are going to apply the criteria -- now, these are the criteria for quality -- and a peer review assessment system that we’ve also developed in 2013, to a significantly, significant sample of investigations and conciliations. Now that we have the criteria, we apply it to a sample to see okay, what's our baseline of how good are we performing? Based on -- so that's a milestone, it's a milestone that at this point, we have in fact set the baseline and, set targets for improved quality. So that's our milestone. And then the target is, well, depending on what our baseline is, we can think about how quickly can we move that up, and again, assuming, not more money, not tons of money coming in, you know, new people, maybe it's hard to do it because we are too -- there's too much work for too few people. Well, okay, we have to assume that and then figure out how do we work within that.
So, a milestone is that we will set the baseline and set the target. Then in 2015, TBD percentage, to be determined percentage, and this is what Deidre Flippen taught all of us, that the joy of TBD, to be determined, that that's actually legitimate, because we don't know how much we have to go up until we know where we are. So we will have a TBD percentage of investigations and conciliations, meet the targets for quality, for both 2015 and 2016. Now here's the thing. We don't get to just leave a TBD percentage forever. What OMB is going to -- OMB noted that our Plan was different than the usual agency plan because we were so much taking the step back and pulling data in, and they're fine with that as long as we reached -- we hit a milestone, so we figured out our baseline and set our target, and then we fill in those TBD percentages.
I won't be here in 2015 when you are doing that, but I am sure that there will be someone else here who will, you know, be helping to figure out what is the right TBD percentage.
COMMISSIONER LIPNIC: Thank you Madam Chair.
CHAIR BERRIEN: Thank you Commissioner. Ms. Withers, I just wanted to ask you about consultation with other enforcement agencies or other government agencies during the process, and what kind of outreach was done and what kind of feedback you got.
MS. WITHERS: We, as part of the process, we heard from folks at the Department of Commerce who came in and talked about their planning, and we also talked to the planning side of OMB as part of the process and they came in and made presentations to the groups.
As part of our outreach to our other, sister agencies, we made sure that copies of the Plan went through the leadership of the civil rights division of the Department of Justice, to OFCCP, to the Office of Special Counsel, those were the primary ones, and then regularly to all the EEO directors at every agency with which we have a relationship, so that we sought feedback. A couple of -- a number of the EEO directors wrote specifically in. We got informal feedback from the other agencies which essentially said, “This is great, I hope we can do it, how did you make it work?” Office of Special Counsel in particular, sent a very nice email saying this is a great Plan, we look forward to how you implement it so we can learn from you.
So we did that to not just get kudos for the Plan obviously, but to continue the interagency conversation about how we go forward, and to benchmark as we go, so that as we learn to do things, they learn to do things and we keep learning from each other, since we all have similar goals with regards to enforcing the law.
CHAIR BERRIEN: Thank you, and I'd like to use the balance of my time to read the names of those who I haven't already mentioned who were part of the strategic planning effort: Brett Brenner, Dexter Brooks, Robert Canino, Ronald Crenshaw, Reuben Daniels, Marty Ebel, Lynn Gagyi, Elizabeth Grossman, Irene Hill, Keith Hill, Patricia Jaramillo, Paul Kehoe, Christopher Lage, Kerry Leibig, Spencer Lewis, Gabrielle Martin, Pierrette McIntire, Melissa Miller, Levi Morrow, Susan Murphy, Sue Noh, Christine Park.Gonzalez, Gerald Patterson, Joy Pentz, Francis Polito, Rosemarie Rhodes, Germaine Roseboro, Valerie Sandy, Jerome Scanlan, Wilma Scott, Cathy Ventrell.Monsees and Steven Zanowic. Thank you all for your service.
With that, are there any final questions from the Commission?
CHAIR BERRIEN: Okay, I'd like to call for a motion.
COMMISSIONER FELDBLUM: I move the passage of this Plan.
CHAIR BERRIEN: Is there a second?
COMMISSIONER ISHIMARU: Second.
CHAIR BERRIEN: Is there any discussion?
CHAIR BERRIEN: Hearing none, all those in favor?
(Chorus of ayes.)
CHAIR BERRIEN: All opposed?
COMMISSIONER BARKER: Opposed.
CHAIR BERRIEN: The 2012 to 2016 Strategic Plan for the EEOC is approved by a vote of four in favor, one against. Thank you and I -- although we have had ample opportunity I do want to make sure if anyone has any closing remarks that they have an opportunity now that the Plan has been approved, to make those remarks.
CHAIR: Commissioner Ishimaru?
COMMISSIONER ISHIMARU: Well, this past discussion on TBDs is interesting and I guess I lead with a caution, that I've seen TBDs be used both in proactive ways and also in negative ways, and I'm hopeful that once the baselines and the milestones are determined as to what they are; that we use the TBDs for our goals in future in a positive management role, that we stretch our people to do the priority work of the Commission, because I have sat in sessions where the TBDs are set basically at what the people have already done, or what the people know that they easily can do, rather than what should we be doing? How do we focus our work on the priorities that we have set forth in the Strategic Enforcement Plan? That I think is a management challenge for all of us, of how do you do this in a way that will actually push people to work? Again, I have been impressed during my time here at the commitment that our colleagues have around the country, that people want to do great work, they want to be outstanding, and yet, sometimes the objectives that we’ve laid out, sometimes the metrics that we’ve laid out, have turned out to be inadvertently counterproductive, that people have had to focus too much on how do we process cases, how quickly do we do that, how quickly can we close out cases, rather than focusing, in my view more importantly, on the question, has there been discrimination? How do we remedy it? How do we prevent it in the future? Those types of questions have been hijacked, frankly, by some of the measures that we inadvertently had put in – well not inadvertently put in, but that had unintended consequences, and I think that's something that, as a management matter, we across the board need to guard against.
So, you know, I'm a fan of TBDs too, but I think it needs to be used carefully. I think that we can't let it become an easy target, an easy way to get a good rating however it is, for the certain cycle you are in, but that it pushes the employee and it pushes the organization to reach the higher goals out there.
And I think if we can do that, I think this Plan will have great benefits far beyond what we can picture today. So Madam Chair, congratulations, this is quite a process. I know that having done, an abbreviated version just to do an exercise, how difficult it is to corral all the necessary people into the process, how to get people to think about it, and frankly to buy in; that you want our employees, you want all of us to own this going forward, and I think you’ve done an excellent job in making that happen, and I know that process in and of itself is not easy, so, for all the late nights and long hours that so many people put in, I thank you all, because I think this will guide us in the future, there's much work ahead but I’m looking forward to it. Thank you Chair.
CHAIR BERRIEN: Thank you so much. Commissioner Barker?
COMMISSIONER BARKER: Thank you. You know, the organizational chart that is included in the Strategic Plan shows the role of the Commissioners, of the individual Commissioners, and as it is clear from the chart, individual Commissioners actually have very little power or authority on this Commission.
The one thing I think we do have a voice in and authority over is the general direction that the Commission is going in. We are basically a policy setting Commission. That is what the five of us are here to do, is just set the policy, the direction of the Commission. And so I view my role as a Commissioner as that of making sure that this ship is headed in the right direction for the upcoming years, and my concern about the Plan is, although it contains so many good elements and target goals for employees and accomplishments, at its core; it takes this ship, in my view, 180 degrees in the wrong direction.
This Plan acknowledges in several places, in the message to the Commission, from the Commission, and again, in the introduction, that the core mission of this Agency is to prevent discrimination from ever occurring. In order to do that, everybody, employers and employees, have to fully understand what the rules are. We have to operate on a level playing field.
On the small business task force, what we are hearing from small businesses is, just tell us what we have to do and we'll do it. Just tell us what we have to do, but we can't find answers to our questions.
We had a Commission last week, Commission meeting last week, and we heard from a large employer, the very same message: we can't find answers, we don't know what we are supposed to do. The laws that we enforce are very, very complex. It's not just this set of statutes. It's the interacting set of very complex regulations that at some times seem to conflict, seem to give us different messages. And it's not a static set of laws. It's a set of laws and regulations and guidelines and best practices that are consistently evolving. An employer who knew what the rules were five years ago, unless he has kept up to date, is totally out of the loop on what the laws are today because this body of laws changes so very quickly. And every time we issue a guidance and we suggest a broader interpretation of the law, we are shifting that landscape.
So if we are to succeed in our core mission, it's absolutely critical that we make sure that we are getting the message out. Our small businesses represent 99.7 percent of America's private enterprises, so if we are not getting the message out to 99.7 percent of America's businesses, then we are not meeting our fundamental mission. So when we have a plan that gives lip service to prevention but leapfrogs right over it and goes straight to enforcement, we are missing the mark.
Let me also say that the other thing that I disagree with about the Plan is the stated vision. As much as some of us may wish to aspire for complete and absolute "justice" and "equality,” for every person at every minute under every condition in a workforce; the laws that the Commission is entrusted with enforcing do not ensure, nor do they purport to ensure, global, "justice" or "equality" in the work environment. There are things that occur every single day in the workforce that may not be, "just" or "fair." But they are not against any law and certainly not against the laws that we enforce.
In the same way, employment discrimination laws do not purport to ensure global, "equality." Rather, they ensure equality of opportunity in the employment setting, without regard to race, sex, religion, national origin, age, color or disability. No matter how well intended, the global aspirational goal of justice and equality for all in the workplace may be, it is not appropriate for the Commission to adopt a vision for the Commission that does not reflect the role of the Commission, or the intent of the statute they were entrusted to uphold. Thank you.
CHAIR BERRIEN: Thank you Commissioner. Commissioner Lipnic? I'm sorry, Commissioner Feldblum? I’m looking at you.
COMMISSIONER FELDBLUM: I know, I look just like her. Thank you Madam Chair. So when we had the ceremonial confirmation, swearing in, ceremonial swearing in for Chair Berrien, me, Commissioner Lipnic, General Counsel Lopez in January 2012, I remember saying at the time that although there had been some small amount of controversy on my appointment because I was the first out Lesbian Commissioner, I actually thought I was going to have more of an impact ultimately because I was the first out Administrative Law Statutory Interpretation Professor to be on the Commission. And I say that because I always go back to the statute on everything. I read the statute. So, Commissioner Barker, that's why I think I have a very different feeling than you in terms of our responsibility and authority as Commissioners as individual Commissioners, because the statute says “the Commission” shall take in charges, “the Commission” shall investigate, “the Commission” shall conciliate. Now obviously, Congress presumed we would be hiring people to be doing that stuff, but the obligation is on “the Commission.” So yes, we set policy as well, but we have an obligation to make sure that the job that the Congress has told us to do, this administrative job of investigations, conciliations, deciding about litigation, and having a general counsel to bring that litigation on our behalf, that's the job on “the Commission.” All five of us are responsible for making sure that job gets done.
So, I believe that this Plan is a real Plan for helping us get that job done and of course that job includes education. In the 1964 Civil Rights Act, right there in that first part of the Act, the Congress told us to educate folks about their rights, but that was together with having a system to bring in these charges, investigate etcetera.
Now, Congress decided there should be an administrative exhaustion requirement that no person could go to federal court with an employment discrimination claim unless they came to us first, and give us the opportunity to investigate that charge, and if we thought the charge was true, to give the employer a chance to remedy that before being taken to court. Congress, in its wisdom, in its vision of justice, decided to do that. They didn't do that for the Family and Medical Leave Act. I mean with all due respect to the OFCCP, someone can bring a Family and Medical Leave Act claim without ever showing up at any of the offices of the Department of Labor. Not the case for Title VII, ADEA, ADA, all the laws we enforce.
So Congress created this administrative enforcement requirement, and Congress has never given us enough money to really do that in the way we'd love to do that, that's the reality. And you know what? We're no different from lots of other agencies in that respect who don't get enough money to do everything they want to do.
So our job is to do what President Obama said: do it as smartly as we can. And that's what this Strategic Plan does. It sets us on the course to doing it correctly, but I concur with my colleague, Commissioner Ishimaru, and I’m glad we have a week and a half off, but no more than that, because we have to figure out how to get this Plan implemented, that's key.
So let me just end with just a few thanks. Obviously thank you to Sharon Masling, you’ve heard her name before. She's really been amazing in this process. I also want to thank the other folks in my office who have sort of lived with all of this as they are trying to do other jobs. I made a list last night. I've got about 50 people from around the country and in headquarters that I want to thank so I will not do that now, but each of you will be getting an individual email from me with a copy of the Plan, people that I have learned from as I’ve gone through my year and a half so far now on the Commission. And to be honest I actually also want to thank my partner, Nan Hunter, because a week ago, as I was walking out of the EEOC at like eight o’clock, Dana Hutter was walking out with me, and he said to me, “Oh, really good job on the Strategic Plan,” and I said, ”Wait, can you tell that to her?” because Nan had just pulled up in the car. She rolls down the window and he's like, I said, “Just say to her what you just said to me.” “Hey, you did a really good job” -- and I said, “Okay, good, that's all,” because she's lived through some of those late nights on working on this. So thank you so much Madam Chair, and to my colleagues and I look forward to the implementation of this.
CHAIR BERRIEN: Thank you and Commissioner Lipnic?
COMMISSIONER LIPNIC: Thank you Madam Chair. First I just want to correct for the record that it's Wage and Hour that oversees the Family and Medical Leave Act, it's not OFCCP, so just to be clear on that.
I have, as Commissioner Ishimaru alluded to, overseen strategic plans for four other enforcement agencies and, you know, I have to say I think the work that has gone into this has been just tremendous. I compliment the Chair for the open process and congratulate all of you on your work. I think as others have said, ultimately, you know, this sets us off in a direction and the proof will be in the pudding and we certainly look forward to the next steps in working with everyone on that. But thank you all for your efforts.
CHAIR BERRIEN: Thank you Commissioner. Some know who have heard me speak publicly, one of my favorite poets is Robert Frost and he wrote the line that, “There are miles to go before we sleep,” and in many ways that is and has been my experience in the time that I have served as Chair of the EEOC, because as tremendous as what we have done is, what lies ahead is a great, great body of work, and I feel very much a kinship with our almost 2,500 employees across the country, many of whom I have had the chance to meet as I have visited offices around the country as well, because it is a constant challenge to know that you are entrusted with such an important mission and to be dedicated to achieving it but to often labor with resources and other limitations that make it difficult to achieve that mission.
So I do think that throughout this process we were very mindful of that, we were very cognizant of that, and we will continue to look at the work that lies ahead in bringing this Plan to life with some awareness of that. We have approved a Strategic Plan for the Agency today, but as many colleagues have said today, what will bring it to life is its implementation and what will make it more than words on a page will be its implementation.
So there are miles to go before we sleep. We are ending one phase of this journey but we have a longer journey ahead. I want to thank all of the members of the Commission for their contributions, for their participation. I want to thank everyone who has participated in today's meeting and I know that as we go forward, even where there may be disagreements about any particular content or any particular priority expressed, and I think one of the real marvels of the strategic planning effort was that there were many, many moments in that process where any of the more than two dozen people who were around the table felt strongly that something should be there that was landing on the cutting room floor, or that something must be added that ultimately wasn't added or that one or another word would be a better expression of a sentiment.
The real marvel is that that disagreement at times and that earnest belief in one's position, never stopped that group from getting to its endpoint and never stopped that group from doing the job that it was assigned to do. So I just want to again express such profound gratitude to all who served on the strategic planning groups and to the leadership, because I know that we did not get here without a great deal of hard work. Thank you all and with that, we have no further business in the open session so we will now recess and we will convene for the closed session in 15 minutes.
Ms. Wilson: This concludes the open session of the meeting of the Equal Employment Opportunity Commission. We now ask that the room be cleared for the closed session. Only individuals receiving prior approval should remain in the room.
(Whereupon, the open session of the meeting was adjourned at 12:31 p.m.)