U.S. Equal Employment Opportunity Commission
JACQUELINE A. BERRIEN, Chair
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.
Former EEOC Leadership Roundtable
Private and State and Local Government Sectors Roundtable I
Private and State and Local Government Sectors Roundtable II
Federal Sector Round Table
EEOC Employees Roundtable
Motion to Adjourn
CHAIR BERRIEN:Good morning, everyone.We are going to get started.We do expect to be joined in a few moments by Gilbert Casellas, the former chair of the EEOC, but we do have a number of preliminary matters and we have a very, very, very ambitious agenda this morning.So we want to get things started and stick as closely to our original schedule as possible.So I want to thank you all for being here and in accordance with the Sunshine Act, today's meeting is open to public observation of the Commission's deliberations and voting.
At this time, I'm going to ask Bernadette Wilson from the Executive Secretariat 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 a sign language interpreter? 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 re-entering 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 April 21st through July 16th, 2012, the Commission acted on nine (9) items by notation vote:
Approved amicus participation in one (1) case, and disapproved participation in two (2) cases;
Approved the obligation of funds for claims, administrative services in a litigation case;
Approved EEOC survey collection contract for the EEO-1, EEO-3, EEO-4, and EEO-5 reports;
Approved a subpoena determination;
Approved a request to close the June 20th, 2012 Commission meeting;
Approved a resolution honoring Gerald S. Kiel on his retirement and a resolution in memory of Germaine White.
CHAIR BERRIEN:Thank you Ms. Wilson.And this morning, there are a number of things that are unusual.We are seated in unusual places.We are also going to proceed in a different format today, using a roundtable format to facilitate discussion and to promote a chance for us to get the maximum amount of input from today's participants.
The purpose of today's meeting is to receive input on the Commission's Strategic Enforcement Plan, or SEP.In February 2012, the Commission approved a Strategic Plan for fiscal years 2012 to 2016.The Strategic Plan establishes a framework for achieving the EEOC's mission to stop and remedy unlawful employment discrimination by focusing on strategic law enforcement, education and outreach, and efficiently serving the public.
The first performance measure of the Plan requires the Commission to develop and approve a Strategic Enforcement Plan which will identify what the EEOC's national priorities should be to have the greatest impact in combating discrimination in the workplace and include recommendations for improving enforcement, outreach and prevention, and customer service.
To assist the Commission in this effort, I appointed a workgroup of Agency leaders representing a variety of experiences across the spectrum of our work.I lead the SEP Workgroup, together with General Counsel David Lopez and Memphis District Director Kathy Kores, both of whom are here today.
In June, the Workgroup and the Commission solicited input from the public on the Strategic Enforcement Plan's development. I want to thank all of you, including those on the panel today, and those in the audience, who have submitted comments as part of that process.
We received over 80 submissions from organizations and individuals, and these submissions will certainly help to inform the Commission and SEP Workgroup in developing our Strategic Enforcement Plan.Once the SEP is drafted, and before Commission vote, we are going to solicit public input once again.
So for those of you who have not weighed-in, you have not lost the opportunity to do so.And for those of you who weighed-in before, you will have an opportunity to respond and react to something more specific soon.
Today, we are very, very fortunate to have an opportunity to hear from, and interact with, a very distinguished group of more than 30 people who have a profound interest in, and great contributions to make, as we develop the Strategic Enforcement Plan.
We'll be hearing from these speakers in five roundtable discussions and we typically thank all of our participants at the end of the day, at the end of our meeting, but given that, today, we do expect to have a full day of meeting, we are going to open, I want to open, on behalf of the Commission to thank everyone who is here today who's joining us at any point during the day as a panelist, whether you've traveled across town, or across the country, we know that the time and effort it has taken for you to be here with us today, and the time and effort it has taken for you to prepare for this, and to think about how you might be able to assist us in this effort is something that you have very generously given to us and to benefit the work of the Commission and the people of the United States, so we thank you.
We are going to open today with a panel of distinguished former leaders of the EEOC.I'm delighted that we're joined today and we'll begin our discussion today with the perspectives of former Chair Gilbert Casellas and former Vice Chair Leslie Silverman, who, in their tenure with the EEOC, contributed greatly to the Agency and its work, and have left a significant legacy that all of us on the Commission have been able to benefit from.
So we are excited and delighted that you're joining us today to share your perspectives with us as we continue to develop our Strategic Enforcement Plan.This roundtable will be followed by two roundtables devoted to enforcement priorities in the private, and state, and local government sectors.
At 11:30, we will begin our second panel on enforcement priorities in the private, and state, and local government sectors.We'll have a brief, very brief, lunch break, and at 1:20 we'll resume with a roundtable on federal sector issues.And then, after a short break, at 3:00, we will begin a roundtable with EEOC employees.
It is a very, very full and ambitious agenda we have today.To permit us to cover everything that we need to cover, my colleagues on the Commission have graciously agreed that we would move right into our meeting content this morning and forego opening comments.
And to ensure that we're able to hear from everyone and have an opportunity for discussion, I will ask all speakers to please limit your statements to five minutes.We do have your written statements.
A yellow light will appear when one minute remains for all speakers, and given the schedules and the amount of ground we have to cover today; I will be in the unhappy position of strictly enforcing our time limits, but it is necessary if we will be able to get through our agenda.
I want to thank all of you, again, for being here.And with that, I want to ask that we begin with Former Chair Gilbert Casellas, who is currently the Chairman of OMNITRU, a Washington, D.C.-based management and consulting firm.Chair Casellas?
MR. CASELLAS:Good morning.Every July I think very fondly of the EEOC, and the reason is because my confirmation hearings for Chairman occurred, in fact, 18 years ago almost to the day.So I think fondly of the EEOC, less fondly of the Senate, but that's another issue.
When I appeared at my hearing, in my written statement to the Senate, I said the following, "The EEOC can only maintain its credibility if its leadership is willing to have open doors and open minds, and listen to the many communities that have a stake in what we do."
So I commend you, Madam Chair, Commissioners, General Counsel, for keeping an open door and an open mind as you consider the future direction of this Commission.
In addition to thanking you, whenever I return to the Commission and am given an opportunity and a microphone, I always try to acknowledge and thank the Commission's career staff for their service to our country and to the service to the most fundamental of American values; equal opportunity and fairness.So I thank all of them for their service.
I was asked to come here and I try to delimit my role to say that I would try to share my perspective and provide some historical context to that period 1994-1998, during which many changes were instituted by our team, our collective team, including Priority Charge Handling and the National Enforcement Plan.
Why we did what we did, and how we did it, are set forth in a 1998 Law Review Article that I wrote for the University of Pennsylvania Journal of Labor and Employment Law, and I submitted that as my statement.If you had a chance to read it, it may bring to mind that statement, "The more things change, the more they stay the same."
So I won't go into any of those particulars, but would be happy to answer questions.But what I thought was most important to emphasize was the philosophy that I think, at least I tried to bring to bear in my role as Chair.
One was collaboration, two was bipartisanship, three was a balanced and integrated approach, and by that I mean, more specifically, a continued focus on education and training as a preventive measure, a robust conciliation process, we piloted ADR as another step, and finally, and ultimately, a strategic and selective litigation.
Those all had to work together and had to be integrated to make this successful. I think, finally, if there was a paradigm shift, and sometimes I doubted whether that made sense, and I know that some of my successors sometimes had doubt about that paradigm shift, but that was the deep, active, and unprecedented involvement and engagement of my fellow Commissioners via task forces.I mean, it had never happened before that Commissioners were as engaged in those kinds of activities on behalf -- that touched on operational issues --- on behalf of the Commission.And that was in light of an alignment with my approach to bipartisanship and to collaboration.
And so the many changes that we brought about in that short period of time, I am proud to say were unanimously adopted by this bipartisan, fivemember Commission, two of whom members were asked to reverse positions that they had taken in earlier times.
And I think that, if there's a lesson to be drawn, and that is, our changes, Priority Charge Handling, the National Enforcement Plan, yes, they lasted a long time, but they lasted a long time not because they were perfect, but because they were the result of a collaborative endeavor and a fundamental compromise.
So if there's any advice I would give to the Commission, that is to say, don't let the perfect be the enemy of the good.This is a difficult Agency to run.It is a challenge.You have so many constituencies that you will not make everyone happy, but if you stay true to the underlying principles of the statute, those duties that you have sworn to uphold, and those values you've sworn to uphold, the Commission will survive.Thank you for your time.
CHAIR BERRIEN:Thank you Chair Casellas.And now we'll hear from Former Vice Chair Leslie Silverman, who's currently a partner at Proskauer Rose.Vice Chair?
CHAIR BERRIEN:Is your mike on?
MS. SILVERMAN:Yes.I'm extremely honored to be invited back to the EEOC today. I must tell you that I've been incredibly impressed by the enormous collective and inclusive effort this Commission has put into revamping its strategic planning process.And I was asked to discuss my point of view based on my role in creating and leading the systemic task force.
I have not publicly discussed the work of the task force in any depth in a number of years and I appreciate your giving me the opportunity to do so.I hope that my remarks today will be taken in the spirit they are intended.I care deeply about this Agency and I want it to succeed in its vital mission.
The task force was initiated because it was clear that we were not doing a particularly good job of identifying and rooting out systemic discrimination.While the EEOC certainly had pockets of systemic expertise, it was scattered throughout the field and Headquarters and was not being used to its full potential.
We understood that in order to effectively marshal the resources that the EEOC had to deal with systemic nationwide issues, we had to productively utilize our unique resources on a similar nationwide basis.I'm honored to see that six years after our vote to adopt the task force's report and recommendations, the Agency continues to embrace the initiative.
It was, after all, the collective work product of 14 dedicated and knowledgeable career employees from throughout the Agency.Together we created a program that would help change the mindset of Commission employees because, as I explained in my detailed written testimony; it was designed to operate within the Commission's culture and existing balance of powers.
And while I'm proud of our work, I cannot tell you in hindsight that all the decisions we made were necessarily correct or that I always agree with all of the decisions made in connection with the program.
As initial matter, while I applaud your decision to make systemic work a priority, I know that resources are scarce and that this Agency must balance the size and scope of the program with its other responsibilities, and chief among those is the successful management of charges in the inventory.
History has shown that when EEOC has been able to manage its charge inventory, it's been most successful in fulfilling its mission.And I know this has become increasingly difficult in the last few years as the number of charges has escalated.
And while the Commission has made great progress in the last year or so, stakeholders on all sides continue to raise legitimate concerns regarding the time it takes to investigate a charge and the quality of many of those investigations.
I believe before the EEOC focuses its efforts on additional issues, it should work to improve quality and timeliness of charge processing, and I agree with those stakeholders who have urged the Commission to improve the intake function.And I would also urge the Agency to continue to foster and creatively utilize tools, such as the mediation program, which help resolve charges in a timely manner.
Second, while I have no way of knowing for sure what's going on inside the Agency, from the outside, it doesn't always appear that the EEOC has achieved the coordinated, strategic, and effective approach to systemic work that the task force envisioned.
I'm particularly troubled by the strategy of pursuing a multitude of systemic investigations challenging the same policy and/or issues, especially when the law supporting EEOC's position is, at best, unsettled.Responding to the Commission's detailed systemic RFIs can be extremely time-consuming, expensive, and burdensome.
While these RFIs may be necessary in certain instances, is it necessary for the EEOC to initiate a systemic investigation on, for example, every large employer who comes across with a questionable leave of absence or background check policy?
Wouldn't it be far more strategic, and effective, and economical for the Commission to select a reasonable number of lead charges to investigate for each issue and at least attempt to find an alternative solution for the remaining charges?
I believe that if the Agency approached respondents earlier on in the process, it would find many employers willing to make reasonable changes to their policies and practices, and those policy changes would come sooner, and they would achieve the EEOC's goal of serving the public interest.
Finally, I'd be remiss if I did not touch on one aspect of the systemic program that should concern each of you.Although I provide all of my comments today with the recognition that I no longer sit where you sit, or usually sit, I actually never sat there, but we know what I'm saying, meaning, I don't have the full understanding of the inner workings of the policy and the strategy making decisions of the Agency. But it does not appear that you are sitting where I once sat, and again, I don't mean literally. I don't believe you have the full vantage point I had as an EEOC Commissioner when I worked on the task force. As I pointed out earlier, the program was designed to work within the Commission's existing structure of checks and balances.That system included the delegation of authority as it existed at that time, which should have permitted the Commission to review many of the systemic cases prior to the Agency initiating litigation.It's my understanding, however, the Commissioners no longer see or approve the vast majority of these cases before they're filed, and further, that systemic plans are never shared with the Commissioners.
As members of this body, you should not be setting policy or designating priorities in a vacuum.You should have exposure to and information about proposed and ongoing litigation, systemic and otherwise.
There's little doubt in my mind that a Commission that is cut off from understanding the types of cases and theories of discrimination being pursued, and that is not kept in the loop as to how these cases are proceeding; will find it challenging to make coherent policy or to act as a supervisory body of the Agency.
I am in no way suggesting that the Commissioners should substitute their authority or judgment for the operating arms of the Agency, but rather, that the Commissioners must have an appropriate oversight and policymaking roles, and this is especially true for the systemic program.After all, it is Commissioners who are responsible to Congress and who are ultimately held accountable to the people for the actions of this Agency.Thank you and I apologize for going over.
CHAIR BERRIEN:Thank you both so much.And we are going to take a round of questions and then hear from you about those. So if you're note-taking, pen ready if you can.Commissioner Barker.
COMMISSIONER BARKER:I really don't have any questions, just would like to thank you both.And Chairman Casellas, it's nice to finally have an opportunity to meet you.I've heard so much about you.
MR. CASELLAS:Thank you.
COMMISSIONER BARKER:And, Leslie, wonderful to see you and thank you for your comments.I particularly appreciated, you know, your insight.So thank you very much.
CHAIR BERRIEN:Thank you Commissioner.Commissioner Feldblum.
COMMISSIONER FELDBLUM:Thank you Madam Chair.Thank you Madam Chair, actually, first for agreeing to this roundtable approach.When I first said I thought we should come down off the dais for this meeting, I'm sorry for those in the audience, I didn't really realize that might be a little harder for you guys to see, but it would just be seeing us and thank God for the technology, and, you know, it's as if you're at a rock concert, right?
But thank you for that.I actually think for purposes of discussion, that's going to be very helpful in terms of feeling like this is really a roundtable conversation.Thank you also for having just all of us ask some questions.You know, you don't have to answer each one, the point is, right, unless I'm directing a question to one of you it's like, if you feel like sharing on a question, please do so.
Okay.The first I have to say, Former Chair Casellas, thank you so much for the work you did from '94 to '98.I will tell you that when I was chairing the performance measurement group that worked with the strategic planning group that developed the new strategic plan; at one point I had an entire session that I simply called a "Back to the Future" moment.And all I did was give them a historical overview of what you had done given all the materials that had been developed.So one specific question I have for you is, I thought some of the suggestions in the 1998 task force report that was done as a follow-up to the local enforcement plans, what was working and not working with the local enforcement plans, was actually quite good, but I didn't see that there had been follow up from that.So now I'm curious about what happened with that.And the other thing, and I had not, I'm sorry, seen your Law Review Article at the time, but I do think it's worth stating again here what you said in that Law Article, which I think is key, where you said, "In searching for an approach to remedy these seemingly intractable problems; my first step was to de-politicize, as best one could, the discussion about and search for solutions.""For the first time in the Agency's 30-year history, I involved, in unprecedented ways, the other Commissioners to help find solutions to the Agency's many problems.Through the use of Commissioner-led task forces I was able to tap into the perspectives of the other four members of this bipartisan Commission.These task forces followed my charge to seek out and consult broadly with the many stakeholders of the EEOC."
And as you know, the result was bipartisan unanimous approval.I want to commend our current Chair for, I think, doing similar stuff in terms of, certainly, my chairing of the Performance Measurement Workgroup and doing, hopefully, the quality control plan, will, in fact, bring that perspective, because as Former Vice Chair Silverman just said, we took an oath to carry out the charge of the Commission, and it's "the Commission" that takes in charges, and "the Commission" that investigates, and "the Commission" that decides whether there's reasonable cause, "the Commission" that's supposed to conciliate, and "the Commission" that decides whether to litigate.That's the five of us.So that is our fiduciary responsibility.And I think that that's a very important piece.
So based on that, my second question, and I will tell you, and this is longer than I will go in terms of introduction for other panels, because I'm basically going to be asking the same question to everybody who's out there.
It became very clear in our strategic planning process that the only way to do targeted strategic enforcement was to have a rigorously implemented priority charge handling procedure.We cannot, so long as Congress continues to require administrative exhaustion; continues to require that no one can go to court until they come through our doors first; and does not give us the resources to do all that, we have to have a categorization system.There's no other way to do it.
And one of the things that we looked at in terms of the Strategic Planning Group, was the PCHP process that you worked on in '95 a good one?And we said, yes.And we said rigorous implementation of PCHP.But PCHP presumes that in Category A, there's called enforcement plan/potential cause charges.The first category includes: one, charges that fall within the national and local enforcement plan; and two, other charges where further investigation will probably result in a cause finding.In other words, an "A" charge, something that we're going to focus on getting expedited, includes: number one, regardless of what priority issues we choose; it includes anything where, at intake, it looks like this is likely to be cause, okay?
So putting those aside, the other way that investigators can decide what is an "A" charge is if they fall within the national and local enforcement plan.So my question to you, and to everyone else who's going to be coming forward is, when I read through the priority issue areas that you put in this National Enforcement Plan of '95, some just seem so broad that I don't know that they serve any purpose.
The others that have specifics, number A through J, you know, some seem to be passed; some maybe are still legitimate.What we have to decide, the four of us, is, which issues should go in this list of A through J?
And I'm curious to know, number one, how many priority issues you think we can have and have this work?That's again, to everyone, how many we can have and have it work?And two, if you had to choose two or three that either should or should not be on this list, what should those be?
Thank you Madam Chair.
CHAIR BERRIEN:Thank you.Commissioner Lipnic.
COMMISSIONER LIPNIC:Thank you Madam Chair.Chairman Casellas and Vice Chair Silverman, thank you so much for being here.I had twoquestions, one, first to start for the both of you, one related to our inventory, you know, and obviously both of you dealt with that when you were here, and I believe, Chairman Casellas, that was part of the reason for developing the PCHP system.
And, Leslie, you talked about, in your testimony, you know, the balance between that and the systemic initiative.So I was wondering if maybe the both of you could sort of give us your thoughts about what is that balance?I mean, you know, our inventory is just, we're always going to see a certain level of charges, and of course, at onepoint, and I believe, correct me if I'm wrong, Chair Casellas, that either as a direct result of the Priority Charge Handling system that, you know, there was a significant drop-off in the inventory.And, you know, of course, now it's ramped up again, so I'd just be interested in, both of you, your thoughts on, sort of, the balance between that, individual charges, and the goals of the systemic program?
CHAIR BERRIEN:Thank you Commissioner.General Counsel Lopez.
GENERAL COUNSEL LOPEZ:Thank you. Welcome home.I always like to look for connections and I think one strong connection that I see between the work that Chairman Casellas did and the Commission did between '94 and '98, and the systemic task force, that some of the work deals with a bipartisan approach to the principles of good government to the efficient operation of a federal agency, a minimum requirement that we owe the taxpayers.
And I know, you know, working with Chair Casellas at the time, that there was a lot of talk about streamlining layers of review, building capacity of the line staff, empowering, you know, empowering the people who actually do the work, and there was a lot of talk, at that time, in the context of reinvention there was something called reinventing government, and I know that's alluded to, Chair Casellas, in your article.And that was something that I think really animated this sort of bipartisan consensus that the Commission was able to achieve at that time, because everybody agrees that we need to operate efficiently, and by operating efficiently, we operate more effectively.
The same thing with respect to the Systemic Task Force, and you talked about that in your testimony, Vice Chair Silverman, in terms of, you know, some of the steps and some of the recommendations adopted by the Systemic Task Force to make the Agency function better and more efficiently.
And again, you know, it seems like a lot of the same principles that were discussed in the '90s were also animating the work of the Systemic Task Force.So I was wondering -- and again, the Systemic Task Force, I think, you know, was a bipartisan effort.It was an inclusive effort.
And I think, you know, you go from what happened in the '90s to the Systemic Task Force and you continue to build our effectiveness as an Agency on a bipartisan basis, but you also make us function as an efficient operating government Agency.
And I was wondering if you would be able to talk about that aspect of the work that you guys did.
CHAIR BERRIEN:Thank you.Director Kores, if you have anything?
DIRECTOR KORES:Okay.Well, thank you both for being here.It's wonderful to hear the obvious continuing high regard that you both have for the Agency.I think, probably, everyone who is here is here because they share, to some degree, that same regard for the Agency, so thank you very much for being here.
I just have two questions that I wanted to ask you both to address.First, you talked about your philosophy, Chair Casellas, consisting of so many elements and I'm wondering if, in any priority that the Commission adopts, whether you see a role for all of those elements; the bipartisanship, the balance, the outreach, the education, the conciliation, and the strategic investigation and litigation?
And then the other question I had goes to something which is an element of the strategic plan, which Commissioner Feldblum referred to, which is the quality control plan.And I'm wondering, specifically, Vice Chair Silverman, if you believe that the quality control plan has a possibility of addressing, in a meaningful way, the issues that you pointed out on quality and timeliness?Thank you.
CHAIR BERRIEN:Thank you.And the question I would like to ask both of you is, I believe you used this term, Chair Casellas, intractable.And one of the challenges, great challenges, that I see for the EEOC today, as I suspect was true for you both, is that, some of the issues that we are charged with addressing appear to be intractable or appear to be extremely resistant to the approaches that have been taken over the years.
And when our mission is, as we have defined it, stopping and remedying unlawful discrimination, I think we are challenged to find ways to get to the next level.And we might all identify issues that we think fall into this category, but some examples; we still see cases of extreme, severe harassment involving physical attacks in the case of sexual harassment, sometimes, criminal attacks in the case of sexual harassment much too frequently.
We see instances of blatant, unquestionable discrimination on the basis of pregnancy.Someone is pregnant at work, they're told to go home because they're pregnant.And I'm sure we could all come up with examples, but I have been both dismayed and disturbed by the fact that there are certain practices that don't seem to be receding.
And I'd like to ask from your perspective of your service here, but also the perspective that you have in the work that you do today, what more and what we ought to be doing differently to try to address some of these very, very resilient, and some might say intractable, issues of workplace discrimination?
So we'll open the floor to you both.
MS. SILVERMAN: Have at it!
MR. CASELLAS:I came here and I was given a set of intractable problems.
DIRECTOR KORES:In 1994.
MR. CASELLAS:In 1994 and so let me try to answer as many of these as I can at a high level with the following caveat, and that is, quite frankly, I have not studied the National Enforcement Plan since I left in '98, and hope I never have to look at it again, but --
COMMISSIONER FELDBLUM:You'll get to look at a new one soon.
MR. CASELLAS:Yes, I get to look at a new one, yes.I'm waiting anxiously. I'll start with the question about, kind of, philosophy and, sort of, what animated that because I think that all of those elements were part of, at least, my approach to each of these issues, recognizing that, and you've seen it, and if you had not been in a policymaking position before coming to the EEOC, you learned it quickly, and that is, you know policymaking is not an exact science.You know, it is a matter of approximation.And it is difficult to convince the private bar, for example, of either side, plaintiff or defendant, that what you do is not exact.And so you will run into lawyers on either side who will pigeonhole you and tell you why what you are doing is so off the mark, because they are hyper-focused on, as they should be, on their particular issue and their particular client, and how their client is different.And that's their role; yours is different.And so as you try to craft policy, and to get to the question, when we crafted this National Enforcement Plan, yes, it was very broad because it was designed to try to, first, set up, sort of, an umbrella under which local enforcement plans could fit. You didn't want any local enforcement plan to be counter to this National Enforcement Plan. And you knew that the priorities in California, the industries in California, the population and the demographics, were different than they were in Miami or New York.And so, you know, the way it was supposed to work was, you come up with these very broad principles, and these issues that you thought needed to be addressed, or law that needed to be clarified; and then you wanted individual local plans to fill that in, so to speak.So there wouldn't be uniformity across the country as it relates to this because, again, if you look at your law enforcement role, you wanted to exercise some prosecutorial, for lack of a better word, discretion.And so you weren't going to take on every case and every issue.You couldn't do that.
But in deciding on those issues, what was different was that, it was done through a broad inclusive process.So it wasn't me saying, well you know, you're the first full-time Hispanic Chairman of the EEOC and MALDEF and PRLDEF, and those groups felt that national origin issues had not really been focused on by the Commission, so you need to push that.And I said, well, I have to be an ecumenical Chairman, at least that was my approach to it, so while those were important issues to me, I wasn't going to dictate what those issues were.So when you see this list, yes, it was a very long list, but then again, you know, it's the proverbial horse that's designed by a committee, hence the camel, so that's sort of one point.
Secondly, on the issue of quality control, that remains, obviously, a challenge. That was a big challenge.I cannot tell you the number of lawyers and companies who talked to me about that one investigator, that one lawyer in some region somewhere, who's just off the proverbial reservation.And yes, I say, yes, that's probably true.And when the situations are described to me, I agree.The answer to that, in part, is, quality control and adherence to process and to these policies that are adopted which you have oversight, but that's also driven by resources.I mean, that's the bottom-line, you know?
And this article, of course, was written in 1998, you know, a few months after I left, and that's why I say, you know, history seems to repeat itself.If you looked at the number of charges each investigator had when I came here, it was 125, or something like that, and four, five years earlier it had been about 50, 55, per investigator.
Well, you can't expect any investigator, no matter how well-trained, no matter how knowledgeable, to give the appropriate attention to the charges, it's just impossible.So in trying to get to that other question about, sort of, striking the balance between individual and systemic charges, you know, I don't know the answer to that one.
You know, and I don't think anyone here in this day will give you the answer to that, except if you, and what we tried to do was to adhere to certain, over-riding principles, a certain approach, philosophically, and a certain perception of fairness so that when people came in and they said, you know, you're picking on us, I wanted to be able to say, we're not picking on you.You've known, these are our sets of priorities.We are adhering to a process.We went through this process.There's a delegation with appropriate oversight.That's what those plans were designed to do, by the way.You know, folks have said to me, oh, you let these regional attorneys run wild.It was never that intent.They were given a certain amount of discretion, but it was always with Headquarters oversight as it related to systemic litigation, and the resources that they needed.I mean, that's where the Chair could control some of the, sort of, renegades, if you will.
So I tried to address each of those very quickly, recognizing the time and recognizing that there's someone to my left with more recent experience, and particularly, more external involvement with the Commission.
MS. SILVERMAN:Thank you.We wouldn't have any of that but for you empowering Commissioners.Thank you.With regard to your question, Commissioner Feldblum, you know, how do we pick these "A" charges?And do we pick a few, do we pick a lot, you know, and how do we deal with that?
You know, I think that the most important part of the "A" charges are the real obvious, blatant, likely discrimination.I think that has to dictate how many other things you can get to, because, you know, those are the things that shock people, those are the things that ultimately make headlines, and those are the things that, when you get in early, you know, and you resolve, you make a huge difference in an individual's life, and you resolve things, and you, you know, hopefully, set the company straight, assuming that it pans out to be what it is.And of course, these are all a living, breathing system.
With regard to the other issues, I think if you only picked a few issues, or a handful of issues, you'd end up in the same situation that I was complaining about with systemic.I mean, I would rather see, you know, a bunch of emerging issues, or interesting issues, and then I'd rather see the field pick which ones to do on "A" depending on how big the issue is.Like, for example, if it's some issue with social media and, you know, I don't know that there is, you know, there's policies and then there's policies, and if you put that on the list and everyone goes, oh, well this is a social media policy and goes after it, that's what you're going to end up with.
Plus, so it would be both how egregious, you know, obvious, what have you, that is, and then also, how many other, you know, offices and districts are also investigating those.And I think that would be a more strategic way to deal with the "A" cases.
I also think that the biggest issue, from what I hear, is the "B" cases.And I think you really have to devote resources to the "B" cases, and people who know how to get to "B" cases.And I agree wholeheartedly with the recommendation that Joyce Margulies made in her testimony that the ADA is a very complicated statute, and that certain areas are also complicated in the law.
And having people with expertise that can pick out and deal with those issues would be much quicker.They're going to know where the issues are and where they're not.And you would get through a lot more if "B" cases weren't an afterthought, which I think that they sometimes are.
So I think those are the most important things.I think I've addressed some of the questions about streamlining, David, an efficient operation.I mean, I would say that, you know, one of the things I talked about was the delegation, and I have total respect for the career folks, and for you.If the old system was not working and too cumbersome, let's look at a new system that would allow the Commission to participate as well if that's not working and that's too cumbersome.And I don't know if that's what you were saying, but I just wanted to say that, something that does make sure that these folks have a better understanding of what's going on.
So hopefully I've answered most of your questions.
MR. CASELLAS:May I just supplement my answers with a little more perspective.You know, when I came to the Commission, well, I had been the General Counsel of the Air Force, but before then I had been a practicing lawyer.And so I didn't understand policymaking in that role that I described earlier, which is very different.
Since leaving the Commission I have spent the rest of my time as a board member for a number of major companies, either as a member of the corporate board or on advisory boards, for companies who are international companies, all of which are, today, maybe not historically, but today, recognize leaders in the area of diversity and inclusion as it relates to their workforce.
And when I am asked, in a consulting role, to go to talk to other companies about their activities as it relates to diversity and inclusion, you see that there is a whole industry now.There are chief diversity officers in every major company.And one of the frustrations that employers, particularly large employers, national and international companies, will share with me is the fact that, one, they are national companies, but they get different responses in different parts of the country from the EEOC. So a national Agency is giving inconsistent, sort of, responses in policies; in inputs; one.And two, that these efforts that cost them lots of money over the last several years of setting up employee resource groups, having--some of them quite bravely stated aspirational goals with regard to representation in their ranks, those senior executive ranks, they're not getting credit for it, so to speak.And I've actually had that experience for the short time I practiced law after I left the EEOC.So in the past, I've said to my successors as Chair that, as you think about your outreach, that there is a segment of the employer population that is different from the, sort of, rank and file, if you will.I mean, there are thousands and thousands of employers, but there is a group of them, they tend to be large public companies with large employee workforces that have very sophisticated HR systems and lawyers overlooking and monitoring, and doing all sorts of internal audits; and there's a frustration there that they're not given credit for what they have done.And it's all for naught when you sit in a room with, what I call, the renegade investigator.So I would ask you to be mindful of that when you think about the implementation, because again, as you go back to David's question, what drove this clearly was, the reinventing government initiatives, and the good government, and efficiencies.And one of the things I said in my Senate testimony was, you know, we want to operate as a business or else we won't have the respect of the employer community if we are inefficient and if we have those kinds of disparities and differences among our offices.
So I thought it was important to mention that as well, because, you know, those employers are -- you know, they're sophisticated, they watch everything you do, and they, sort of, feel that, well -- and it makes it more difficult for those advocates around diversity to say, well, gee, you've done all of this and now, for some reason, you're getting hit with this investigation and there's no one really to talk to about these kinds of activities because it doesn't seem to matter.
MS. SILVERMAN:Just one point, I talked a little bit about inconsistency in my testimony.This is one of the things that, within the task force recommendations, we allowed for inconsistency because it's one of those, sort of, quirky things about the Agency.Sometimes there's a reason for inconsistencies and sometimes there isn't.And I think that you really have to examine, you know, where the complaints are about inconsistency and whether or not the district's reasons for being inconsistent are actually valid or just the way they've always done things or want to do things, because, that is very frustrating for employers.I think it's great for us lawyers who know, you know, how the different offices work, but honestly, I mean, some of them should not be and you need to figure that out because, that's one of those things where it's part of the culture here and it was easier when going, you know, against the grain in a new initiative to, kind of, go along with that, but it may not be right.And I, you know, would argue that there's times to empower the field and then there's times to question, and this may be a time to question.
CHAIR BERRIEN:I want to thank you both on behalf of the Commission for being here.You're always generous and very, very encouraging of all of our work and supportive of all of our work.We thank you for being here and appreciate it very much.
We do not have a break at this point.We're just going to have the second panel come up, and that is Ray McClain, Fatima Goss Graves, Josh Stehlik, David Burton, Claudia Center, Sahar Aziz, Brian East, and Bobbie Wanzo, please come up.
CHAIR BERRIEN:As we transition to this panel, we know that some people might have joined the meeting in progress.We do want to ask again, is there anyone present who is in need of interpreter service?Thank you.
Thank you.The bios of each of our panelists are provided with the public materials.They will be posted on the Commission Web site, so we will do very, very abbreviated versions in the interest of time.
We want to begin with Ray McClain and Fatima Goss Graves, who are representing the Employment Task Force of the Leadership Conference on Civil and Human Rights, followed by Joshua Stehlik from the National Immigration Law Center, David Burton from the National Small Business Association, Professor Sahar Aziz from Texas Wesleyan School of Law, Brian East from the Consortium of Citizens with Disabilities, and Bobbie Wanzo from the Illinois Department of Human Rights.
I will take you in that order.The timing light will be used.The yellow light will come on when there's one minute remaining in your time.Thank you in advance for cooperating.And we'll begin with Fatima Goss Graves and Ray McClain.
MR. MCCLAIN:Chair Berrien, members of the Commission, thank you for inviting the Employment Task Force of the Leadership Conference on Civil Rights and Human Rights to participate in this event.My name is Ray McClain.I'm Director of the Employment Discrimination Project at the Lawyer's Committee for Civil Rights Under Law, which is one of the organizations that's participated for years in the task force of the leadership conference.
And along with Ms. Graves of the National Women's Law Center, I'm appearing today on behalf of that employment task force. My remarks are going to address our suggestions for organizing the process of investigations; Ms. Graves will refer to some of the priority topic areas.
Unfortunately, the current system that has been in place, as discussed by your former members of the Commission just now, produces large numbers of investigations that are interminably delayed and then end without substantial explanation.
Systemic investigations sometimes drag on for four or five years without any established deadline for final Commission action.So in the Strategic Enforcement Plan, the Commission needs to include a system for expedited processing of the priority charges that you identify as being within the scope of the Enforcement Plan's priorities, and identify specific procedures for achieving expedited processing.
Here are some suggestions that we have offered.Involve experienced staff attorneys in drafting pro se priority charges. Develop checklists based on the specified characteristic of priority charges, preferably web-based.Use those checklists to develop procedures for early review and promptly assign priority charges to more experienced investigators.Designate one or more experienced staff attorneys in each office to consult with investigators on these priority charges throughout the investigation.Provide complete disclosure of the respondent's position statement to the charging party, preferably by electronic filing.Train investigators to more effectively utilize information that is required to be maintained by federal contractors who are subject to Executive Order 11246.And when dealing with experienced attorneys for charging parties, instruct the investigators to use the ability, and the information, and the experience of those experienced attorneys instead of, as too often occurs, being resistant to that.
And finally, to assure timely completion of investigations, establish benchmark time frames.Perhaps a 180 days for individual or multiple charging parties, a year for class actions and pattern or practice charge or other systemic investigations as a target for completing the initial investigation and preparing a recommendation, either with proposed enforcement action or a justification for further investigation.
In addition, the Commission needs to enhance the effectiveness of cooperating with private parties and their attorneys who attempt to serve as private Attorneys General. For both sides, actually, of the parties to charges, it would be useful to have a unit of attorneys in the national office who can serve as liaison for private counsel.
One of the points that was just made by the prior panelists is that, there's often very little ability to get national office responsiveness when there is a problem in a district office.
When investigations have been completed, provide the data from the investigations, including the data that's provided in digital form on systemic investigations, to the charging party through counsel.This is just not done in connection with most FOIA requests.
CHAIR BERRIEN:If you could wrap-up, please.
MR. MCCLAIN:Yes.I'm done.
CHAIR BERRIEN:Thank you.And, Ms. Graves.
MS. GRAVES:Thank you Chair, and Commissioners, and I will be as brief as possible.I am Fatima Goss Graves and I'm Vice President for Education and Employment at the National Women's Law Center, and I'm pleased to be here on behalf of the Leadership Conference on Civil and Human Rights.
My comments today are focused on a few key areas of systemic enforcement that we believe warrant continued and special focus because they either impact especially vulnerable and low-wage workers or practices that are difficult for individuals to challenge, either because of a knowledge gap or for some other reason.And, you know, in some of these cases we'd like to see enhanced enforcement and in some of these cases we believe that there is a need for additional guidance to aid enforcement.And the Leadership Conference's comments as well as the comments of many of the members detail those.
But first, we believe it's important that the Commission continue to shine a light on employer policies and practices that exclude workers from consideration for employment and we think that removing these barriers will make great strides in addressing the tremendous rates of unemployment among many groups of workers that are represented in the task force.
So we, therefore, recommend the Commission focus on screening practices that have disparate impact on protected classes, including the consideration of criminal records, credit history, unemployment status, and requirements that information be submitted to reveal an applicant's age.
We also believe it should be a priority to focus on enforcement following the recent ADA amendment regulations which would allow the Commission to help develop the law in this area and make real improvement for employment opportunities for persons with disabilities, but another related priority for the employment task force is related to pregnancy and caregiver discrimination.
And over the last decade there has been a 35 percent increase in pregnancy discrimination charges, and given the Pregnancy Discrimination Act's requirement that employers treat pregnant workers at least as well as they treat those similar in their ability or inability of work.They expanded reasonable accommodation in the amendments to the ADA.I mean that, in many circumstances that the PDA too now requires reasonable accommodation for pregnant workers.So we believe, in both of those areas, the amendments to the ADA warrant close attention by the Commission in its selection of its cases.
We also urge the Commission to continue to focus on enforcement actions to remedy companywide sex-based pay discrimination.This is another area where we think, for individuals, the lack of knowledge makes the actual charges low, but warrants additional Commission focus.And moving forward with the Commission's compensation data collection efforts will ensure that it has the information to detect and respond to pressing pay disparities through its systemic enforcement actions.
And finally, the employment task force recommends that the Commission bring enforcement actions to protect individuals who suffer sex-based pay discrimination for failure to conform to sex-based stereotypes.A focus in this area is particularly timely in light of the recent 5-0 decision holding that discrimination against an employee based on an employee's gender identity violates Title VII.
Thank you for the opportunity to participate today and I look forward to the further conversation.
CHAIR BERRIEN:Thank you very much.Joshua Stehlik.
MR. STEHLIK:Good morning and thank you for the opportunity to speak with you today.My name is Josh Stehlik and I'm a worker's rights attorney at the National Immigration Law Center, or NILC for short, based in Los Angeles, California.
NILC is a non-partisan, non-profit, and national legal advocacy organization that works to protect and promote the rights of low-income immigrants and their families through litigation, policy advocacy, and community outreach and education.
We work closely with a variety of worker and immigrant advocacy organizations across the country and also with government agencies, including the EEOC, to fight the widespread unlawful employment discrimination faced by low-income immigrant workers.
My comments today will focus on three recommendations for the Commission as you finalize the Strategic Enforcement Plan.The first is simply to recognize the particular vulnerabilities of immigrant workers to employment discrimination and to respond through outreach, education, and enforcement efforts.
The second is to step up Commission outreach, education, and enforcement efforts in Arizona and the five other states that have passed harsh immigration enforcement laws.The third is to focus the Commission on the increasing use of eVerify and its potential for discriminatory misuse by employers.
But first, I want to start with a client story that exemplifies the plight of many low-income immigrant workers in the U.S., and this is based on real case facts.Mr. Ramirez came to the U.S. from Honduras with his brother, and like many immigrants, was seeking better work opportunities.He landed in the southeast and found work in the fields. It was back-breaking labor, but he was paid less than the minimum wage and subjected to frequent racial slurs.His brother had it even worse as his learning disability made him the more frequent target of racial slurs and also of sexual harassment by co-workers.
Subsequently, Mr. Ramirez moved to the northeast in search of better wages and working conditions, and landed a job in dishwashing and behind-the-scenes food prep at a restaurant.He was paid more, but often, still below the minimum wage and still subject to racial slurs.
The employer would frequently threaten to call immigration if he complained, and at one point, forced him into a van at knife point and drove past what the employer identified as an immigration police station.Sadly, this is not an uncommon story.Now, more than ever, immigrant workers need the Commission's protection.
Nearly 40 million workers in the U.S. are immigrants and nearly 1/4 of those are undocumented.And immigrant workers tend to be concentrated in low-wage industries such as agriculture, construction, and manufacturing, with high levels of discrimination and harassment.
And unscrupulous employers, like Mr. Ramirez's, you can use immigration status and the possibility of immigration enforcement to undermine workplace protections for immigrant workers and to chill them from exercising their rights.
We've seen this illegal dynamic throughout the country, but it's particularly acute in Arizona and the five other states that have passed harsh immigration enforcement laws.Although the Supreme Court has struck down, recently, some provisions of Arizona's law, other provisions still stand.
And in some ways, the harm of these laws has already been done in that they've created a climate in those states of bias and fear that has infected the workplace and resulted in increased employment discrimination.
This increase is reflected in the Commission's charge receipts.For example, in the past two years, the number of charges in Arizona has increased by 31 percent overall, with a 20 percent increase in those claims that are based on national origin discrimination.
We've also seen the workplace impact of these laws in stories that have come to NILC through hotlines that we have helped to operate in Arizona and in Alabama.And these stories include harassment based on national origin, discrimination by co-workers, differential treatment by employers based on native versus immigrant status, and increased threats of immigration-based retaliation.
All point to the need for the EEOC to anticipate and to plan for increased outreach, education, and enforcement efforts in those six states.We also wanted to identify an issue that's been emerging on the ground, and that's the growing use by employers of the federal eVerify program to confirm work eligibility of new hires.
With the increase in use comes an increase in potential misuse by employers in ways that can amount to unlawful discrimination.A government study from 2009 shows that the program's error rate is 30 times higher for naturalized citizens and 50 times higher for legal non-immigrants, such as guest workers, than for citizens.And thus, immigrants are at a higher risk for error in this program.And that compounds the possibility for misuse by employers who, at any stage in the screening, hiring, or employment process, can use the program in a discriminatory manner by applying it differently to workers based on race, ethnicity, or national origin.
In sum, I want to highlight that low-wage immigrant workers are particularly in need of the Commission's protections, and that's true throughout the country, but particularly in Arizona and the five states with copycat laws, and that eVerify has emerged as a particular mechanism for discrimination against immigrant workers if misused by employers.
NILC has worked with the EEOC for many years and appreciates the leadership of the General Counsel, David Lopez, and the good work of EEO staff that we've personally worked with, including Anna Park, Lucy Rosas, and Bill Tamayo, and we look forward to years of continued partnership.Thank you.
CHAIR BERRIEN:Thank you.And now we'll hear from David Burton from the National Small Business Association.Thank you.
MR. BURTON:Thank you.My name is David Burton.I'm General Counsel of the National Small Business Association.NSBA was formed in 1937 to represent small businesses in the United States.We're the oldest small business organization in the United States and represent about 150,000 small businesses.
I'm here today primarily to talk about two EEOC policies.One dealing with high school diploma requirements and another, the recently released criminal history background guidance.
We believe that both of those policies, right now, unfairly and unreasonably hinder small business' ability to find qualified employees and also their ability to provide a workplace that's free of workplace violence, intimidation, and harassment, and that protects the business' customers, their employees, and their families.
The EEOC has an important mission and we support that mission.Neither we nor the Agency support or countenance discrimination in employment, and we, like this Agency, oppose bigotry.
But what I'm talking about today does not involve small businesses attempting to impose discriminatory policies based on bigotry. Instead, they're trying to grapple with very real problems involving important countervailing policies; getting qualified employees and protecting their employees, their workplaces, their customers.
The vast majority of firms are trying to comply with the law and with EEOC guidance.The problem really boils down to the guidance, especially with respect to criminal background checks, isn't clear.I can assure you that virtually no small business owner is going to be able to read, absorb, and apply the April 25th, 55-page, 167-footnote enforcement guidance on the use of arrest and conviction records in employment decisions.
And the question and answers are not much more helpful.They make one or two minor points clearer, and other than that, you're basically expecting small employers to engage in a complex analysis of multiple factors, and weigh them, and guess what the EEOC's position really would be.
I've talked to a number of sophisticated attorneys who specialize in these matters and they're at a loss as to what to advise their clients.And the bottom-line is, if they're confused, the generalist attorneys and small business owners in the small business community are also going to be totally at a loss.
I also believe that your guidance is not going to achieve the objectives that it seeks to achieve.When you're faced with a very complex document such as that, that has a lot of factors, and that no one really knows what it means on the one hand, and on the other hand, you have very real fears of tort liability, of very real desire to have a safe workplace, and very clear and direct state law requirements that, and in some cases, of course, federal requirements, that criminal background checks be conducted, those clear direct requirements are going to prevail.And your guidance is not going to have the impact that you hope it does.
I think you need to start over and put together guidance that contains concrete, real-world examples that people can understand, that attorneys can understand and advise their clients, and we'd be glad to work with you to do that, because, presumably, we have a mutual goal of everyone understanding what the rules are.And what is and is not permissible in the area of conducting criminal background checks.
I would also like to discuss briefly the high school diploma requirements. The vast majority of businesses that have high school diploma requirements are simply trying to identify the most qualified individual for the job.And they do not institute those requirements for any unlawful purpose.And we don't believe that, in practice, it poses a serious civil rights problem, and that it should be an enforcement priority.I'd be glad to go into a lot more detail on any of these things.My written statement does to no small degree.
I suppose one last thing I should mention is that, besides theft and property crimes, workplace violence is a serious problem.The Bureau of Justice statistics, I believe, shows that well over half a million people a year are victims of workplace violence.
And proper background screening can prevent these problems and we need to find a way forward, and the current guidance is not that way.Thank you very much.
CHAIR BERRIEN:Thank you.We'll hear from Professor Sahar Aziz, Texas Wesleyan School of Law.
MS. AZIZ:Dear Chairwoman and Commissioners, thank you very much for the invitation to testify today before the EEOC.I've been asked to address religious discrimination experienced by the diverse religious communities that enrich our nation.
And due to the unfortunate reality that the September 11th terrorist attacks caused a sustained backlash against Muslims, Sikhs, Arabs, and South Asians, or those perceived as such, my comments will focus on the multiple forms of workplace discrimination experienced by these communities.
With that said, efforts to eradicate discrimination against any particular group benefits employees of all faiths.Training and educating employers about their legal obligations to protect religious freedoms in the workplace creates a productive atmosphere wherein each employee is evaluated based on merit and objective performance criteria as opposed to false stereotypes or unlawful bias.
Similarly, educating employees about their workplace rights deters employers from failing to comply with anti-discrimination laws and prevents employees from violating the rights of their co-workers. Now, while most American residents voluntarily comply with anti-discrimination laws based on a personal commitment to equality and justice for all, religious bigotry exists in American society.
One need only review the increasing number of suits filed by the EEOC over the past 10 years.In 1997, religious discrimination lawsuits made up only 2.1 percent of the EEOC's docket.By 2010, religious discrimination lawsuits increased significantly to 3.8 percent.Similarly, religious discrimination charges filed with the EEOC increased dramatically by 35 percent from 2001 to 2008.
And a disproportionate number of religious discrimination charges were filed by employees who wear head scarves, turbans, or beards for religious reasons because these practices carry a stigma that falsely stereotype them as terrorists, disloyal, or suspect.
Sikh employees are also subjected to discrimination, oftentimes because they're mistaken for Muslim.Sikh employees who wear religiously-mandated turbans are increasingly segregated outside of public view.Invoking customer preferences are company image as pretext, employers segregate Sikhs as well as head scarf Muslim women, or Jewish men wearing yarmulkes, to lower paid, to lower skilled, and dead-end jobs.
Segregated employees are relegated to a lower class, out of sight from customers and other co-workers.Consequently, they are unable to socialize with their peers, develop their customer service skills, interact with the public, and obtain the same opportunities for promotion and growth within the company.Moreover, public or employer bias as to who is worthy of representing the company are validated.
And unfortunately, the troubling rise in religious discrimination continues until the present day.According to the EEOC's 2011 enforcement litigation statistics, charges alleging unlawful bias based on religion were the fastest growing category.Specifically, religious discrimination charges showed the largest increase, rising 9.2 percent to 4151 charges filed in fiscal year 2011 from 3790 charges filed in 2010.
Now, I could spend much more time explicating the nuances and extent of religious discrimination experienced by various religious groups, but I want to focus briefly on specific recommendations that I highlighted in my written testimony.So they can be summed up in five overarching statements.First, the EEOC should adopt creative legal theories of liability and use case briefs to educate judges about post-9/11 religious discrimination.
Second, train other federal agencies about the adverse workplace consequences of selective law enforcement and selective immigration enforcement.
Third, train private sector employers about the rise in religious discrimination and how to proactively prevent it.
Fourth, normalize images of religious minorities in government publications by including women who wear head scarves, men who wear yarmulkes, Sikhs who were turbans, in publications and not just publications focused on anti-discrimination law, but just normalize and humanize them as ordinary Americans.
And finally, diversify points of contact and outreach to religious communities about their legal rights and remedies.Oftentimes religious communities, for various reasons, are led by male, either religious leaders as rabbis, imams, priests, preachers, or also by elders.And that tends to even unintentionally exclude women and youth from having their voices heard in outreach efforts. So I think the EEOC needs to be very proactive about reaching out to those groups.
Now briefly, I just want to talk about federal agencies, because this is something that's really important.There are some practices, for example, by the FBI where they send -- well, they send agents to employers to seek voluntary interviews, and you can imagine what that does to the employees' reputation and those stereotypes that their suspect gets -- get exasperated.And even if the FBI agent did not have the intent to do that, those types of actions by other agencies are undermining the EEOC's mission.And so I would just advise that the EEOC work with other agencies to educate them on how their seemingly benign actions are contributing to workplace harassment and stereotyping.
CHAIR BERRIEN:Thank you.
MS. AZIZ:And in closing, I want to thank you very much for the opportunity to testify.
CHAIR BERRIEN:Thank you.Claudia Center from the Employment Law Center.
MS. CENTER:Hi.Thank you everyone.I'm here representing the Legal Aid Society Employment Law Center in California.Our organization has been providing free legal services to poor people for almost 100 years and for about four decades we've focused on the employment problems of low-wage workers.
I'm going to highlight a few areas of law that we urge the Commission to focus on and to provide leadership, or continued leadership in many cases, and additional guidance, and strategic litigation.There are many more details in my written testimony.
In the area of immigrant workers I would certainly endorse the comments of the other speakers.In California we have about 10.2 million immigrant residents who make California their home and about 2.6 million undocumented workers. And in light of many of the challenges our clients have seen, we urge the Commission to adopt guidance on the Hoffman Decision, post-Hoffman guidance on the remedies and the protections that are available to undocumented workers post-Hoffman.We urge the Commission to develop a stakeholder meeting on these issues of immigrant advocates and to discuss those matters and issue a guidance.
We also commend the Commission's work on U-visas for persons who have been subject to crimes related to their employment situation and urge you to continue streamlining that process.We urge the Commission to continue its work to combat unnecessary English-only or language proficiency requirements, and to strengthen its guidance documents in those areas.
We urge the Commission to take a look at its Web site for all populations, and including immigrant worker populations and the advocates for immigrant workers, and to consider making public documents more accessible in their language, making sure they're available in alternative languages, and consider making podcasts or videos that are more accessible to members of the public who may not speak English or who may not be literate in any language.
We were very excited this year to see the decision in Macy that ensures that persons who are subject to discrimination based on their gender identity status may bring a claim under Title VII and that was a very welcome development.Transgender workers face some of the most egregious and disturbing forms of discrimination in the workplace, and we've seen many examples of that at the Legal Aid Society.
We urge the Commission to engage in further steps to advance the Macy Decision, including additional decisions, litigation, amicus briefs, and certainly, to educate the staff, employers, and the public about the importance of the Macy Decision.
The Commission may want to do some targeted outreach to persons who attempted or were deterred from filing charges based on gender identity discrimination because we've heard, anecdotally, that some transgender workers who've tried to file charges have not been successful with the Commission.
To further this area of law, we think it's important for the Commission to prioritize LGBT diversity among its workforce and to make sure that LGBT staff members are respected and welcomed.
Another population we work with is individuals who've been affected by domestic violence and domestic violence can both occur at work and can affect persons in their workplace.A majority of people who've experienced domestic violence, in fact, experience workplace problems.And we've been working on this population for about 15 years and we've found that neither the employer community nor the victims of domestic violence themselves, or in many cases, even their advocates, are aware that there are laws that can assist the victims of domestic violence in maintaining their employment while trying to keep themselves safe.
And in some cases, those remedies are available under the Americans with Disabilities Act and under Title VII, so we would urge the Commission to consider a guidance document, or a fact sheet, that talks about the ways that Title VII and the ADA can help persons experiencing domestic violence.
I endorse the comments of prior speakers on pregnancy discrimination.That continues to be an endemic problem among the low-wage workers we represent, and quite strikingly, not subtle, people are often terminated immediately upon disclosing their pregnancy and told that the reason for their termination is the pregnancy.So this is a really important issue and we look forward to seeing a guidance document coming out of the recent meeting that the Commission held on these matters.
We endorse the Commission's work on job seekers with criminal records and we hope that the Commission considers broadening its view of how criminal records can screen people out.And you can look at my comments for further information.Thank you.
CHAIR BERRIEN:Thank you.And finally, we will go to Brian East -- I'm sorry.We have two more.Brian East from the Consortium of Citizens with Disabilities. Thank you.
MR. EAST:Thank you Madam Chair and thanks to the Commission and the staff for inviting me and for their work on this plan.The CCD is a coalition of national disability-related organizations that advocate for full equality, self-determination, and inclusion in all aspects, including employment.We do agree that a strategic enforcement plan, a new one, is a very important step.I want to say just a few things.
First, we encourage the Commission to maintain its focus on systemic enforcement, but I wanted to say a little bit about what that means to us.To us, that means more class and pattern and practice litigation, and individual cases that are selected because of their impact on a developing area of law that's a priority identified to the Commission.So there are lots of reasons why the Commission has taken individual cases in the past, and they're all valid, probably, but given the resources, we think a renewed focus on class pattern and practice, and targeted individual cases, is necessary.
With regard to remedies, we really appreciate the Plan's focus on not just monetary remedies, but other non-monetary relief, and encourage the Commission to seek out the kind of relief that has been the hallmark of some recent litigation that has been really effective.Some of the Plan's descriptions of injunctive relief that are too general to be very meaningful, we agree with, but some of the descriptions of injunctive relief that is not too general, still strikes us as too general.So I think there's probably ways to go there.
With regard to substantive priorities, we've already heard the suggestion of ADA Amendments Act enforcement with regard to coverage is important.We certainly agree with that for obvious reasons.It's newness, the new regulations, and the fact that we've had 20 years of bad case law to try and get past now.We also heard comments about blanket policies and other kinds of policies that keep people from getting in the door; keep applicants from getting in the door.
I think in the ADA area, those are important as well.We have blanket employer policies that don't give full consideration to reasonable accommodation, like fixed leave policies.We have blanket bans, exclusionary policies, on, for example, people who use insulin and I think enforcement in those areas.Relatedly, we have a couple of safety defenses under the ADA, direct threat and business necessity, I think the law is not very clear on when to use them and how to use them.I think the case law is not fully consistent with the Commission's view over the years and I think there's room for litigation to clarify that, but also more guidance, particularly on business necessity, where we see courts becoming more and more deferential to any justification offered by the employer as opposed to it being a fairly rigorous analysis, which it was always intended to be.
I think the work the Commission's done recently in the Turkey Farm cases really highlights the segregated employment focus that that could be, and I think that's really good work that's being done there, and really important.And finally, charging parties with mental disabilities and psychiatric impairments, I think, is an area in which there is a lack of private attorneys willing to take them and more work the Commission could do.
Finally, I just want to say something about, sort of, charge processing and investigations, and really just to mirror the concerns that the Leadership Conference expressed on those points.I think that is the area of weakest performance by the Commission and has been for a really long time.I think you're going to hear, in the next panel, some more fundamental suggestions for change, but whatever you do, something has to be done because we just see lots of problems with delay and poor product in terms of the investigation of charges and managing that.So thank you again.
CHAIR BERRIEN:Thank you Mr. East.And finally, Bobbie Wanzo -
CHAIR BERRIEN:-- from the Illinois Department of Human Rights.And thank you for being here.
MS. WANZO:Thank you Chair Berrien.I would like to take this opportunity to thank you and the Commissioners to be able to participate in today's roundtable.I'm going to be really fast because of the interest of time.The Illinois Department of Human Rights is a State Agency responsible for administering and enforcing the Illinois Human Rights Act as amended.
We are one of the 95 FEPA partners of the EEOC.The Act prohibits discrimination with respect to employment, financial credit, public accommodations, and real estate transactions on the bases of race, color, religion, sex, including sexual harassment, national origin, ancestry, military status, age, 40 or over, order of protection status, marital status, sexual orientation, including gender-related identity, unfavorable military discharge, and physical and mental disability.
The Act also prohibits sexual harassment in education, discrimination because of pregnancy, citizenship status, and arrest record in employment, and discrimination based on familial status and real estate transactions.
Like the EEOC, the Department has an obligation to be objective as it conducts charge investigations.Additionally, in an effort to deliver efficient and effective service to the residents of Illinois, and in accordance with the Act; the Department is required to complete an investigation, non-housing, within 365 days of the filing of a perfected charge, or as extended by written agreement of both parties.
In order to preserve the complainant's federal rights, IDHR automatically cross-files eligible employment charges with the EEOC.In fiscal year 2011, the Department cross-filed 2987 cases, approximately 6.7 percent of the 44,377 resolutions completed by the 95 FEPAs.Upon review, there is one performance measure in the strategic plan which directly impacts FEPAs, although we are directly and indirectly affected by the others as well, and that is Number 7, strategy IB-1 and 1B-2, targeted equitable relief.There's been a lot of discussion about that, but we have some comments related to that.
In determining a baseline percentage for targeted equitable relief, we recommend that a survey be developed and distributed to FEPAs to collect EEOC desired data in order to establish a realistic baseline.It is critical that EEOC solicit information from the FEPAs because the 95 state and local agencies are governed by different statutes, and ordinances, and have different processes, even though our missions are basically the same when it comes to employment.
Prior to distributing the survey, I recommend that the Office of Field Programs review it with the established joint standing committee and the Office of Field Programs works with the joint standing committee already on a number of issues. But I think that, to ensure that everything is covered in terms of what we do collect, I think it's a good idea to run it past them.
My second comment is that, there are a number of potential challenges in collecting and reporting this data, such as private settlements where relief obtained may not necessarily be reported to the Agency, and current system's inability to capture non-monetary relief.Most do capture monetary relief.
My third is that, once a baseline has been determined and necessary resources are in place to capture the data, EEOC might want to consider a grace period, or pilot, before FEPAs are held accountable for the baseline.
My fourth comment is that, we would recommend that regional EEO offices conduct investigator training on the types of relief that should be, or will be, considered.
And finally, this is not in my actual report, but I think it would be a good idea to encourage, or enhance, the utilization of the alternative dispute resolution, which was part of the NEP already, but I'm hoping that that not goes away because a lot of agencies do do mediation.
In closing, the Department agrees with the intent of this performance measure, but believes that there are practical issues which should be addressed prior to the implementation of the initial baseline determination.We understand that the objective is to seek relief beyond compensatory or punitive damages for individual victims of discrimination, but through this process, we must continue to deliver effective and efficient service by conducting quality investigations in a timely manner.
Again, I would like to thank you for the opportunity to participate and I applaud EEOC's commitment to include its stakeholders in this process.Thank you very much.
CHAIR BERRIEN:Thank you.And we will do a round of questions, and I want to thank the panel for modeling the timeliness and I hope that we can do the same in our questions. And we'll start with Commissioner Barker.
COMMISSIONER BARKER:Well, again, I don't have any questions.If I had questions, my heavens, we'd be here all afternoon with so many panelists.But I do want to thank you all for all of your very different perspectives and the different things that you are involved in in-depth, which we, as a Commission, can only see from an overall viewpoint.So it's very helpful to listen to those of you who are involved in very particular issues and represent a particular viewpoint.Thank you.
CHAIR BERRIEN:Thank you.Commissioner Feldblum?
COMMISSIONER FELDBLUM:Thank you Madam Chair.I want to say one overarching thing that I hope will be helpful just as we go forward.So we've got a strategic plan for 2012 through 2016, that's already been voted on.So I'm pleased about the comment on the strategic plan for 2012/2016, newsflash, yes, we've done that, okay?
In the strategic plan there were various things we said, like the targeted equitable relief, and actually, I find that very helpful to note, you know, that there might be things we might need to do in terms of a follow up on the strategic plan, literally, perhaps, even a town hall meeting on definitions within the strategic plan that we could get some input on.
But there were two performance measures that the strategic plan for 2012 to 2016 called for.One was the strategic enforcement plan and so everyone who said strategic enforcement plan for 2012/2016, no, I mean, there's been one other National Enforcement Plan.It's been in place for 17 years and 4 months, you know?So we called for the strategic enforcement plan to be reviewed, so I certainly hope it'll be before 17 years, but that's the first performance measure, the strategic enforcement plan, which is designed to do two things; establish what our priority issue areas should be, and two, something the National Enforcement Plan did not do, call for integration between our private sector, federal sector, outreach and education, research, policy, okay?
So on that, I completely appreciate these comments and I'm going to modify my first question that I said I was going to ask everyone based on Former Vice Chair's comment back to me when she said, well, maybe for the "A" charges -- oh, one other thing.So the second performance measure is the quality control plan.So a lot of stuff that people are saying about the quality of charge processing, I agree with the statement of both, we'll hear from Joe S. and Garry S., that's how I'm going to deal with the last names, who both noted that you can't have a strategic enforcement approach without good investigations.
Completely take that, I just want to say that, even if you don't see some of that in the strategic enforcement plan, I hope you will see that in the quality control plan. But the way to get strategic enforcement is to have priority charge handling procedures done well.It's basic.I had asked before, so how many priority areas do you think we could do and at least Former Vice Chair Silverman's comment was, I think maybe just have as "A," your egregious cases, the shock-the-system cases, and everything else maybe just leave.Let the local enforcement folks figure out what the issues are and just you, as the Commission, approve those.
So I'm just curious about anyone's reaction to that.Assuming you don't think that's correct and we should have some priority areas, I am curious as to what you think the principles should be by which we decide those areas.So based on Fatima's statement, I deduce three principles; one, when there's an information gap, that is, the EEOC is simply better than an individual claimant to bring the case; B, evolving areas of law; and C, something that I would call a power gap, okay?
Under information gap, what I've heard is screening and hires, all types of blanket policies that are screening because, by definition, that's harder for individuals to get, and I've heard sex-based pay discrimination.I will tell you, I'm not sure I understand how pregnancy and caregiving would fit into information gap evolving area, but anyway, so those two in information.Evolving areas, I've heard ADA definition of disability and business necessity. I've heard gender identity and sexual orientation, is the evolving area, and perhaps the segregated employment issue with both religion and disability.
And then on power gap, I've heard immigrant workers, domestic violence, and maybe here, a pregnancy with regard to low-wage workers.So again, as anyone speaks, any other issues that you think would fit in.The last thing I would say is, some of you touched on it, but I would love if, as you responded, to expand on it.Sometimes it sounds like what you're saying is, something should be an issue area, priority area, but not necessarily for purposes of "A" charges, but because it needs to be a priority for guidance, or for education and outreach, you know?And I actually think that's true.And again, this wasn't done in the National Enforcement Plan, but something I think we can think about for the SEP.Can you have a priority area, but it's priority for education?If so, I'd like to hear about that.Thank you.
CHAIR BERRIEN:Thank you.Commissioner Lipnic?
COMMISSIONER LIPNIC:Thank you Madam Chair.Thanks very much to all of our panelists.I have a couple of questions and I'll do my best to direct them to individuals and then the Chair will determine who gets to answer.Some of these are very specific based on your testimony.Mr. McClain, you talked about in your testimony the disclosure of the respondent's position statement.So at some point I'd be interested in your comments on why, and my understanding is that that's sort of an inconsistent practice among our offices, so I'd be interested in, one, your own experience with that, and two, why you think that is a good idea and the benefits of doing that.
Josh, you talked about the potential discriminatory use of eVerify by employers and so, you know, I have a couple questions on that.One is related to, sort of, what our jurisdiction is on that and if you could just expand on how you think that is being discriminatorily applied.Also, I'm interested in your thoughts on, and I'll direct this also to Claudia and Professor Aziz, related to, particularly, immigrant populations, and I say this from my experience as Former Assistant Secretary of Labor, you know, often times, in my experience, immigrant populations are very reluctant to access the legal system.
And so while, you know, we can say, well, gee, let's put up more information on our Web site.Okay.What good is that going to do?So I'm interested in your thoughts and your experiences with immigrant populations and how we can better reach them in terms of, you know, they may have rights available to them, but if they're not able to access those, you know, that doesn't serve any purpose.
And then my last question, which is directed to Brian and Bobbie, and I'm not sure if anyone else talked about non-monetary relief, but this relates back to Vice Chair Silverman's testimony related to remedies in systemic cases.And I don't know if this is what you mean by non-monetary relief, but I'm interested in your thoughts on our ability to, in the investigation of systemic cases, before they get to the ultimate resolution, whether that's settlement, and let's assume settlement, whether you think it's possible to move up the non-monetary relief.And by that I mean, I'm defining non-monetary relief as something that is a change in policy, where we're saying, here's what's wrong with your policy and here's what we think is going to make this policy compliant with the law, which would come earlier than, perhaps, here's the monetary relief that ultimately settles the case.And what you think about that, if you think that's a good idea, how we would go about executing that, just generally, your thoughts on that.Those are all my questions.
CHAIR BERRIEN:Thank you.General Counsel Lopez.
GENERAL COUNSEL LOPEZ:Thank you Chair Berrien.Thank you all for your testimony.I have a couple of questions.One very general; one specific.I want to start with Mr. Burton.I frequently say that I operate from the premise, as the chief litigator, that the vast majority of employers are trying to do the right thing.My mother owned a Birkenstock store for 20 years.You know, she was a small business owner and I recognize the importance of the small business community in terms of providing jobs for this economy.
One of the areas that we've discussed here is the whole issue of pregnancy discrimination and we're talking about different approaches.And just strictly from an outreach approach, I think that there's sort of the view, and it's certainly my anecdotal view, that there is a lot of very overt pregnancy discrimination and I don't know if you have any suggestions in terms of what might be helpful to the small business community in terms of outreach, in terms of public education, in terms of addressing, you know, what I think many of us view is a very, very persistent problem in terms of the overt discrimination on the basis of pregnancy.
Now, getting to enforcement, I want to ask a few of you another question.One of the things that we're doing as part of the strategic enforcement plan, that I think that we need to do, is we're trying to assess what the private Attorney Generals are able to do, what the federal agencies are able to do, and what the state agencies are able to do.And I like the way that Commissioner Feldblum framed many of the issues we've heard as involving a power gap.
So when we're talking about Muslim workers, when we're talking immigrant workers, when we're talking about the transgender community, when we're talking about domestic violence victims, I guess my question is, can you give us an assessment in terms of how the private bar is doing, whether the private bar takes these cases on a systemic basis or on an individual basis, and whether they're obtaining good relief, both monetary and non-monetary, you know, to make sure that the violations don't recur.
And as a bonus question, time permitting, there's been some discussion about, you know, certain policy changes the Commission can make and I know that some of you have, you know, mentioned things.I don't know if you can elaborate on some of the areas where you think that the Commission should issue policy, or modify policy, or change policy.Thank you.
CHAIR BERRIEN:Thank you.Director Kores.
DIRECTOR KORES:I want to thank all the panelists as well.I heard, in everyone's testimony, not everyone's, but much of the testimony, a lot of approval of the systemic initiative and the program that has been in place since 2006 when the systemic task force report was adopted.I'd like to ask the group what is your opinion of the extent to which the Commission has utilized two tools, the Commissioner's charge and the directed investigation, in furtherance of the systemic initiative?Do you feel like we've made good use, adequate use?Can we improve it and how?
And the second is a more specific question.Mr. McClain, in your written testimony and in your testimony here, you referred to explaining the basis for a no-cause finding.And I'm interested to hear a little bit more about that because, in my experience, I know about the background of the Commission.We came from a place where we did formerly do detailed no-cause determinations and I'm wondering if that's what you're interested in a return to, and if you'd explain why, that would help.And that's it.
CHAIR BERRIEN:Thank you.Your plates are very full so I'm going to hold back on some things I might have asked, but I will ask this, because I think it's a global question.The National Enforcement Plan, as we heard earlier from Chair Casellas, was designed to have this umbrella of national issues and then an expectation that there would be local enforcement plans that might fill-in gaps, that might identify things that were peculiar to or specific to particular jurisdictions.
So among other things that we have to balance in developing the Strategic Enforcement Plan, there is this question of, what is a proper interplay between national policy and directing things from the Headquarters, or from a national perspective, and what role the information that we get, or the information that comes to us, about local conditions ought to play, and how those ought to be balanced.And I'm interested in hearing from some of you about that, but I would say I particularly recognize that two of the panelists, Claudia Center and Bobbie Wanzo, do much of their work in a specific jurisdiction or with a population of a specific jurisdiction.So I'd say if you can be sure to weigh-in on that, that would be helpful.
And on the question of outreach education, I think I would just piggyback to the question that General Counsel Lopez asked Mr. Burton and say, not only to limit your answer to pregnancy, but I think, very broadly, the Commission is interested in what more, or what we might do differently, to communicate with small businesses about the laws that we enforce and what they require.And in that regard, Commissioner Barker is leading a small business task force.
So some of this will, no doubt, be addressed more fully at another time, but we'd like to take advantage of your presence here today to be able to address that as well.Thank you.And now the floor is open for responses.Unless somebody is ready to jump in, I can just start and work around the table, but you should also, if you hear someone say something that you'd like to add-on, to do that.
MR. MCCLAIN:I can jump in, since I was asked to cover those specific questions. The overarching point I'd like to make is that, the private bar, in trying to work with the Commission, wants the help of the Commission in determining what cases are best to go forward on, and we often do not get enough of that.The disclosure of position statements fits right into that.The more information we have, on behalf of the charging party, about what the employer is actually saying, the better, and we can go investigate it ourselves and find out.
With respect to the no-cause explanations, we are not looking for a return to the formal.We're just looking for better communication, I think, in my own experience and most practitioners I talk with, and the problem is that so many of the investigators are not confident enough about their skills that they are hesitant to expose their reasoning because they don't know that their reasoning is, you know, really strong enough.
And part of the problem there is that there is no way when there is real concern on the part of an individual attorney trying to get information about what's the strength of this case?What's the Agency's investigation shown about the facts that are going to be important to presenting it?They need to be able to get that and there isn't any way to do that reliably now.And that's the thrust of a lot of the process suggestions that we were trying to make.
CHAIR BERRIEN:Thank you.Mr. Burton.
MR. BURTON:I guess there's a couple of things I'd like to say in response to the questions, and in one case, remarks of another panelist.With respect to eVerify, we're very much opposed to eVerify for a whole bunch of reasons, and have really led the charge within the business community that has led to it being stalled in the Congress.But eVerify is a perfect example, along with the criminal background check, and the high school diploma, of where employers are stuck between two competing government interests, two agencies, or in this case, Congress and the EEOC, and our small guys are, more or less, between a rock and a hard place, and no matter what they do, they're going to be on the receiving end of somebody's ire.
In the case of the Legal Workforce Act, which was reported out of the Judiciary Committee, potential 10-year prison terms were not using eVerify.I think that Mr. Stehlik is opposed to eVerify as well, but he did not indicate what kind of things he would find objectionable by an employer, but there is one that I can bring to your attention, and that is, where eVerify gives a temporary non-confirmation that's erroneous, but then the government takes months, and months, and months to resolve the mistake.
So an employer has got a person that is almost certainly going to be proved to be illegal and they're going to have to discharge, but they can't discharge them for that four, or five, or six, or nine-month period.And so you end up having a major problem from a small business owner's point of view that might have 10 or 15 employees.In addition, the small business community is simply sick of being the country's immigration police.They don't want to be in that role.They want to run their business.
And then, unlike ordinary cops, if they make a mistake, they can go to prison. And I mean, I'm talking a paperwork mistake; failing to use a federal database is, potentially, a 10-year prison sentence.It's getting absolutely ridiculous.
In terms of your specific question, Mr. Lopez, about pregnancy, I think that we would be glad to work with you in terms of trying to get the message out.I have mixed feelings about what I'm about to say, but the bottom-line is, the composition of today's panels illustrate part of your problem.You don't have very many employer's groups represented.As far as I can tell from the names, we're the only one.
And to get the message out, you're going to have to develop stronger relationships with employer groups.We're glad to work with you to do that, but the flipside of that is that the message that you want to convey has to be clear.These people who are running businesses, not only do they have to worry about the EEOC, they have to worry about the DOL, the NLRB, the IRS, you know, and then sometime when they're dealing with the alphabet soup of federal agencies, they got to run their business and make money so they can pay their employees.
So the message we convey to them about your concerns needs to be clear, concise, understandable, either by them or their lawyers.And some of your guidance doesn't meet that test and we need to try to work together to do better.And that's, basically, my thoughts.
CHAIR BERRIEN:Thank you.I want to make sure that we get some people on this side of the room.
MR. STEHLIK:Can I respond, then I'll address some of Commissioner Lipnic's specific questions to me.I think Mr. Burton and I probably do agree, in large part, around issues under eVerify.The one thing that I would disagree with you with, is that, the majority, or in almost all cases, the workers that eVerify identify as unauthorized are properly identified as so.I think the 2009 Federal Government Commission study that showed the much higher error rates for immigrant workers versus citizen workers suggest that there are certainly, and we have seen scenarios where --
MR. BURTON:But that's the database's problem, not my guys.
MR. STEHLIK:Right.It is a problem.It's a database problem, but that we have seen workers who are work authorized, but identified incorrectly by the program based on the errors contained in the underlying databases.
In terms of Commissioner Lipnic's questions about the jurisdiction and how it's being discriminatorily applied, we recognize that the DOJ Office of Special Counsel has a role to play here and we think there could be complementary enforcement efforts between the two agencies.
But the EEOC has a broader charge and can advocate on a wider range of employees' behalfs.And so we would suggest that a coordinated and synergistic approach between the two agencies could be most effective.And the ways that we have seen this manifest in the workplace that could potentially implicate Title VII has to do with differential treatment of workers who receive a tentative non-confirmation.And the employer then allowing different opportunities to correct, or to contest, that tentative non-confirmation to workers based on their race, ethnicity, or national origin, or based on their perceived native versus immigrant status.
We also believe, although I think it's much harder to identify, that eVerify can be used in a discriminatory manner in the screening or hiring process.That, I think, is much more difficult because, typically, workers themselves would not be aware of that, that that process had been used or applied to them, nor would they ever be aware that, you know, a potential discrepancy had been identified by the program.
But we think EEOC has particular expertise in that area of screening and identifying pre-hire discrimination, and also as a Federal Agency, may have access to larger scale data on the use of eVerify through which discriminatory applications of the program might be identified.And then in terms of your question about immigration, or immigrant workers being particularly reluctant to access the legal system, that's very true.I think that goes to Commissioner Feldblum's suggestions around having potential priorities, or specific priorities, within the education and outreach prong of the enforcement plan.And I think it may be particularly applicable to immigrant workers where there is a knowledge gap, or an information gap, used differently than you're using it, but which goes to the lack of knowledge within the immigrant community about the applicability of laws to them, and to their situation, and also, potentially, by employers as well.
And so I think outreach through community-based centers, language-based outreach, and things like that, are particularly necessary in that context.
MS. AZIZ:I wanted to respond to Commissioner Lipnic's question, and also Commissioner Feldblum, and General Counsel Lopez, so with regard to the immigrant population accessibility issue, I agree with you and I think that that is just a common experience, particularly of new immigrant populations.I think with regard to religious discrimination, it's actually a much easier situation, in that, there are religious communities, particularly those who are orthodox, or the subgroups that are practicing, you have their religious institutions as an entity, or a vehicle, to which they're already pre-mobilized, and the network is already created.
And so to the extent that the EEOC, without violating, obviously, the establishment clause, can create relationships with many religious community leaders, that would be very effective and leverage that network, with a caveat of my statement, which is that you have to make sure that you include gender that you're accessing women and youth because they tend to be organized among what we would consider traditional and under socially conservative hierarchies.So that's just with a caveat, but there are also a lot of women's groups and youth groups within religious communities, so as long as you're just aware of that and you do that.
So I think that's one way that you can do it, and I know it works with the Muslim community quite well and there have been various agencies that do outreach with mosques, and presumably, also with churches, and synagogues, and temples, et cetera.
The other, I think, structural strength that the EEOC shouldn't take for granted is the fact that you have regional offices, and you have staff and lawyers who are members of these communities.And so if they each just focus on their jurisdiction, you can actually be quite effective in working with these local community groups and finding out who are the pre-existing civil society and civic organizations.They already have their network, and they have the language skills, and they have the cultural conversancy to be able to connect with many vulnerable populations.
And so working with them and letting them be, kind of, the proxies is something that could be done.And that kind of relates to then the education and outreach question.I think that there needs to be, if it isn't already there, an incentive for staff and attorneys, and a reward for them to do outreach because, as we know, EEOC attorneys are inundated with cases, and they have a huge docket, and same thing with investigators, and so if it's not part of their evaluation, I can understand why they may say, okay, I'll do this when I get time, which is probably never.
But whereas you're rewarded, did you do a "Know your rights" presentation to certain vulnerable communities, or, you know, groups that we're targeting because we feel that they need extra outreach?Are you creating contacts?Are you having meetings, outreach, et cetera?And that's part of the evaluation, and so then they're rewarded for it, as opposed to just the statistics of how many charges did you process, et cetera?
And then with regard to education and outreach, and more of it is in my comments and the law review articles that I've written, I would just strongly encourage the EEOC to make sure that its own staff and attorneys are aware, at least with the post-9/11 discrimination context, how complicated and deeply entrenched it is, because it's literally something where you, kind of, take the carpet, you pull the carpet up and realize it is much worse than it may appear, and I'll give you an example.
One of my peers, when I was soliciting input for this, he said, the best analogy is death by a 1000 cuts.And so the experience of many Muslim-Americans, Arabs, South Asians, Sikhs, is, you're kind of inundated with discrimination from various points and it affects everything, from the workplace, to travel, to your interaction with law enforcement, and if you compartmentalize that, it doesn't address the underlying problem.
You've also got a really strong and, unfortunately, successful right-wing, kind of, bigotry movement, which is not implicit.It's quite explicit, which, in my opinion, is a plaintiff's lawyer dream come true.It's like, oh, great.I don't have to worry about circumstantial evidence because it's politically acceptable to be anti-Muslim or anti-Arab.
And that kind of leads me to the private bar question, which is, it's really a matter of making the connections.I get a lot of requests as a professor, do you know a great plaintiff's lawyer employment attorney in Dallas?Do you know et cetera?And so they know their rights if the community groups are doing "Know your rights" presentations, which they can do alongside the EEOC, but they don't know how to access the private bar. And I think the private bar with, at least the cases that I study, would be happy to take those cases because they're, unfortunately, strong cases on the facts, but it's a matter of, how do you connect them?And how do you make sure that these immigrant communities don't end up with bad lawyers or lawyers who misrepresent and say, oh, yes, I'm an employment lawyer, and they've never taken a case before?But that doesn't apply just to here.So if there's a role for the EEOC to connect the private bar to the civic organizations and the religious institutions who have pre-existing networks with these vulnerable communities, I think that would be very worthwhile.
CHAIR BERRIEN:Thank you.Our time is running short and I know that there are several panelists who have not had an opportunity to weigh-in, so I want to make sure there's a chance to do that.We'll go to Brian East, then Fatima Graves, Ms. Center, Ms. Wanzo.
MR. EAST:I just wanted to respond to Commissioner Lipnic's question about moving up the non-monetary relief in the process and I, frankly, don't know enough about life as an EEOC enforcement lawyer to be able to answer that, but I can speak from the perspective of a private enforcement lawyer, and that is, I think there is a tendency to give short shrift to whatever you do last.And so what often happens is, the lawyer goes in trying to negotiate the money, because that seems like the most important thing, or the hardest thing, or the thing that may be most difficult to get past, once that's done, then everybody sort of loses interest in the details around non-monetary relief, certainly doesn't always happen, but I think that is something that does happen, at least from the perspective of the private individual lawyer.So I think one way to combat that is to push, in my practice, the non-monetary relief further up in the process.So when we're going to mediation, for example, that's the first thing on the table.You know, there's a detailed proposal around that, which is not the way I used to do it.I used to view money as, sort of, the principal measure of success, not the only, but the principal, but also, the main hurdle to get past in this settlement negotiation, and it certainly may be, and probably usually is, but I think if I wait till the end, then I think there is short shrift given.
CHAIR BERRIEN:Thank you.
MS. GRAVES:Thank you.And thank you Commissioner for clarifying my framework and improving upon it, though, I would just add a couple of points to it.The first is, in the evolving areas of law point, which I think was the right frame, I would say that the ways in which pregnancy discrimination falls under that is around the accommodations and the way in which the ADA amendments impact that.Although, as we all know, many of the examples we were talking about today were very clear cut, have been unlawful since 1978, and, you know, there's no question that you can't work here because you're pregnant, is clear.
The second piece around the power gap, I would want to add harassment and violence in the workplace to that, because I think, in some ways, that captures some of what the Former Vice Chair was talking about, you know, truly egregious, or really problematic things, that may capture the attention, many of those that are so egregious are also power gap relationships and that's why you might have that reaction.
And then the last point I'll raise, because I know we are way over time, is the point that the Chair raised about the national versus the local priorities.You know, many of the issues that I tried to identify were from a national frame, but, for example, in your testimony, they gave very specific examples of, you know, how does pregnancy discrimination look like, you know, when you're relating it to particular types of low-wage workers, or what does it look like with a particular immigrant community?And I think there are ways for the local offices to take those community needs into account under a national frame.
CHAIR BERRIEN:Thank you.Ms. Wanzo.
MS. WANZO:Thank you.What I was going to say relative to moving the non-monetary up the chain, so to speak, you're absolutely right.We can do it at any point during the process, whether it's in the beginning with mediation, or in the investigation process, or conciliation within our Agency.One of the things that we've been looking into is trying to -- because we generally know what the monetary amount is, because as he said, we find that out from the very beginning because they're trying to resolve the case.
COMMISSIONER LIPNIC:And then you argue over it.
MS. WANZO:Right.But I think that one of the things we've been looking at in our Agency is literally doing some kind of a checklist of the types of things, and generally, pattern and practice issues, that's where the policies and procedures come into effect, that you're saying that we're going to provide training and we're going to do those types of things that will impact a greater number of individuals.
And so we've been looking at a checklist to see the kinds of non-monetary relief types of things that we can start looking for from the very beginning.The other thing that happens is, when we identify a pattern and practice where we're noticing that there seems to be something going on at a particular employer group is, we get those to the Attorney General's Office because the Attorney General's Office in Illinois is the Agency that now deals with pattern and practice in systemic-type cases.
If they see something that appears to be a good case or if we've identified something, then we send it to them.And so non-monetary relief happens at any point in the process, but we're looking at ways that we can identify creative ways of affecting and impacting more people.So I hope that answers your question. The other thing that you had asked, Chair, a question about, you know, information from Headquarters, and what we can do, and if we're working together, what kinds of issues are involved in that?And one of the things that I think, we have a good relationship already with the EEOC organizations that we work with, but I absolutely think that more training can be done on specific guidance on the regional levels.It doesn't have to come from the national, but certainly from the regional offices, our district offices.I also believe that, at one time, EEOC did a lot of investigator training when specific things came out.I think it would be a good idea to re-institute some of that as well, because we want to make sure that everybody understands the same thing; everybody is going through the same thing.So I think that more investigator training would be very helpful when specific guidances come out, but in terms of the relationship that we have, I think we have a great relationship in terms of the information we receive from EEOC, it's just sometimes there's a disconnect between when things are actually put in place versus when they're implemented.So I think if we could look into a shorter time period between when something is actually implemented versus when it gets down to our level, the state level.Thank you.
CHAIR BERRIEN:Thank you.And Ms. Center.
MS. CENTER:Thank you.From outside the EEOC, it seems to me that you can have a set of priority issues for guidance, for targeted law reform, whether through amicus or litigation, for communication and education, and that, from the outside, seems like it could be separate from, and longer list from prioritizing around your incoming charges and how you manage those.So I would certainly encourage a longer list for that, sort of, top-level law reform work.
And in terms of either list, egregiousness, to me, seems like one factor, but certainly, not at all, the only factor, and sometimes cases that are egregious are, sort of, besides the point, you know, depending on what it is.You know, really, the important thing is, what is important to workers?And you can develop a set of principles around that, but I think it is more an art than a science, and that, you know, if there's an opportunity to make a great law reform point, you should take that opportunity even if it's not on a list.So thank you.
CHAIR BERRIEN:Many thanks to all the members of this panel and we appreciate your comments and your input today, and your comments submitted in writing as well.Thank you.
We'll call up the next panel, which is Joseph Sellers, Gary Siniscalco, Nancy Modesitt, Daniel Kohrman, Deborah Eisenberg, Joyce Margulies, Marc Bendick.
CHAIR: Good afternoon everyone.Almost afternoon, that is, we are going to call the meeting back to order.I want to thank this panel.This is our second roundtable on private, and state, and local sectors, and government roundtable.We will begin this panel with Joseph Sellers from Cohen, Milstein, Sellers, & Toll, and Gary Siniscalco from Orrick, Herrington, & Sutcliffe.After that, we'll hear from Professor Nancy Modesitt, Daniel Kohrman, Deborah Eisenberg, Joyce Margulies, Marc Bendick, so that will be the order.And we'll get started with Joe Sellers.
MS. WILSON:And before we begin --
CHAIR BERRIEN:Oh, thank you.
MS. WILSON:-- is there anyone in need of sign language interpreter services?Okay.Thank you.
CHAIR BERRIEN:Thank you Ms. Wilson.
MR. SELLERS:Madam Chair, members of the Commission, Mr. General Counsel, thank you very much for having me here today to speak with you.I come today as a longtime supporter and student of the Commission and would like to invite the Commission to think about emphasizing the word strategic in its strategic enforcement plan as it proceeds to develop it.I think that the challenges the Commission faces today in terms of the increased areas of responsibility it has, the very great demand for services as reflected, if nothing else, by the large number of charges presently filed on an annual basis, the challenges in its litigation program, all call for a more strategic consideration of how to deploy its resources, which are, at the same time, limited.And unless you know something I don't, I assume that may continue for some time.Let me start with the charge investigation process.We've heard today already, as you are, I'm sure, well-aware, that there have been various complaints from time to time about the way charges are investigated.And no system this large is going to be perfect, but I'd like to suggest that you consider a more strategic approach to deploying your scarce investigation resources.
Everyone who files a charge that's within the Commission's jurisdiction and is timely, as I understand it, has a right to an investigation, but they don't all have the right to the same investigation.And I think the day has long past when we have the luxury of being able to look at every charge to the same extent and in the same way.That doesn't mean that the charges shouldn't be given full and fair consideration where the evidence warrants it, but I suggest to you, and I think there are structural ways this can be setup so it's not left to the discretion of individual investigators to guide them on making strategic decisions about when a charge warrants more careful and thorough investigation, and more resources as a result, and when it is something that appears to present, maybe, very unlikely to lead to a cause determination, as an example, based on some very preliminary questions that can be asked about whether there are comparators, or whether there is direct evidence of discrimination that's being presented, or some other kind of evidence that, at the outset, might likely lead to a cause determination.
Remember, these determinations are not dispositive on the merits.This is not an adjudication of the merits.I recognize that most people who proceed through the Commission and get a no-cause determination may not have many other resources available to them, so I don't mean to minimize the determination.But I suggest to you that I think the Commission's investigative resources, you really need to think about how to deploy them in a way to use them most strategically to serve the Commission's top priorities, whatever they may be.I think to the extent that the Commission has, and I understand it does have a priority on systemic investigations, and where evidence warrants it, litigation. I think that's a healthy area of focus because, if nothing else, the economies of pursuing claims that may benefit large numbers of people are likely to be more effective than pursuing claims that may be involving lots of individuals.I don't suggest for a minute that the Commission should never investigate charges brought by individuals, nor do I suggest for a minute that the Commission should avoid litigating cases on behalf of individuals where it suits the Commission's priorities.
But I would invite the Commission to think about how limited its budget is for investigations, how great the demand is, and that, for decades, the Commission has been faulted for the investigations that have been undertaken.It's not just a recent phenomenon and I know there have been many efforts made to try to fix it.So let me speak, also, to the question of, I think there needs to be a new, kind of, matrix for how to count charges that are processed by investigators.
Historically, the focus has easily been on numbers; numbers closed.And that invites, I think, sometimes perverse incentives to simply close charges.There are ways to look at the investigative system, the investigation results, and the investigation undertaken that would permit other dimensions to the investigation to be used in evaluating investigator performance and guiding investigators in their investigations.
Likewise, on the litigation front, I suggest that the Commission and the General Counsel's Office should, likewise, use its strategic judgment about how to deploy its scarce resources in litigation, which has grown more resource-intensive, more expensive, and more challenging.
Last point, I want to address Commissioner Feldblum's question about categories of priorities.I think the information gap is an important area, emerging areas, power gap, I would add high-profile-type cases that may help educate the public about types of discrimination and where it exists, and I would add systemic or other evidence of widespread discrimination as priorities it may consider.Thank you.
CHAIR BERRIEN:Thank you very much.We'll hear from Gary Siniscalco from Orrick, Herrington.
MR. SINISCALCO:Thank you Madam Chair, Commissioners, and General Counsel Lopez.I represent management.I've been representing management since 1978.Before that, I spent 10 years at the Commission.And despite representing management, I agree with everything that Joe Sellers just said.I also agree with many of the things, in terms of priorities, shared by various advocates.I think we all agree we all have a stake in enforcement of the discrimination laws.And when I say all, I mean the Commission, the public, charging parties, and certainly, employers.But we have a stake in a process that is fair, efficient, and qualitatively sound.It is simply not that way.The fulcrum for your enforcement is whether or not the Commission finds cause.And the way you get to a cause decision is through an investigation.And it is consistently inconsistent how poor many of these investigations are, not just for finding cause, but also for finding no-cause.
One of the reasons, years ago, they stopped writing up cause decisions was because many charging parties would complain about those decisions as being unsupported and inadequate.And so they went to simply the no-finding.Well, we have the same today with respect to cause decisions.They are surmised, they are superficial, they don't follow the Commission policy of stating cause. And one of the reasons for that, a primary reason, is because they're simply based on inadequate investigations.
There is something else I don't agree with, and that has been the criticisms, or the underlying criticisms of investigators of the Commission.There's constant reports, it goes back to the systemic report and before that, to the investigators need more training. I think the investigators need more supervision.I place the responsibility on the supervisors of investigations, the district directors, they're the ones issuing the decisions.It isn't the investigator who makes a recommendation and that becomes a decision, it's the responsibility of the district director.It's the responsibility of the top management committee in a district office, and that consists of the regional attorney, the district director, and their respective direct reports.They are the ones responsible for supervising.The other major issue for the Commission is conciliation.Now, we all know that conciliation is supposed to be the result of cause decisions, but all you need to do is look at your own numbers.Only 25 percent of cause decisions result in conciliation.There's a lot of reasons for why it's such a low number.One is, in many of the cause cases, they're unsupported, many of the demands are excessive, or, in some cases, it may well be a recalcitrant respondent.One of those three is a likely reason.But then you have to ask yourself, if 25 percent are conciliated and 75 percent are not conciliated, and those are decisions, remember, those are cause decisions where the top management committee supposedly has said, we will enforce the law on these failures of conciliation, but then the Commission has to ask itself, why are only 10 percent of those cases being pursued in litigation?
Many of them are simply not litigation worthy and you need to know why.When I say you, I mean, the Commission and the General Counsel need to know why.I would suggest that, in every case that fails conciliation and is not litigated by the Commission, you need to have a memo on why not.Putting aside all the other supervision review that should go on, you need to know, ultimately, why these cases are not sufficient to be enforced.There may be many reasons that are legitimate.I suspect there's going to be a lot of reasons that they're just inadequate investigations.You're finding this now in the cases that you're litigating. The courts are no longer giving you a free ride when you're now trying to litigate these cases.There should be no reason, in my view, as to why the Commission should bring a case that they lose on summary judgment.I can see losing a close case at trial. I can see losing a tough case. But you're losing on summary judgment, that should not happen, and so there's got to be some further oversight.
There's been this whole discussion about delegation to the field, and you can have this dispute back and forth.There's got to be some oversight and supervision, regardless of whether you re-delegate back to the Commission, or whether you have some interim process; there needs to be review and oversight.If you don't have that as part of your overall strategic enforcement plan, then you can have all the strategies you want, go after all these issues you want to go after, and they will fail.Thank you.
CHAIR BERRIEN:Thank you.We'll now hear from Nancy Modesitt from the University of Baltimore School of Law.Professor.
MS. MODESITT:Thank you Madam Chair, Commissioners, General Counsel, I greatly appreciate the opportunity to speak here today.And I was a little surprised to be invited because the work I had done was a few years ago on restructuring the EEOC and as an ivory tower academic, one always wonders whether your work is thrown into the abyss, never to be seen again, but surprise, surprise, a few people have, in fact, read it.
And so what I'd like to do today is give you some thoughts, based on my work, on what might be done at the EEOC to make it a bit more of a meaningful Agency that is managing its own destiny and can be an agent to eliminate, or at least eradicate more effectively, discrimination in the American workplace.So first off, my central tenet is simple, and quite possibly, wildly unpopular, and that is that the EEOC should not be required to investigate every complaint of discrimination that is brought before the Commission.
I recognize this is beyond the ability of the Commissioners and the Chair to manage, but I think it is worth mentioning in this arena because these are the individuals in this room who might be able to be agents of change on behalf of the EEOC.This would require legislative action on the part of Congress, but I think it is imperative because Congress has never funded the EEOC so that it can investigate the charges of discrimination. So with that pie-in-the-sky dream being, in fact, at this stage of pie in the sky, let me offer some thoughts on more concrete things that might be done given the current legislative system that we have.
And the first of those is a recognition of the fact that it is impossible to investigate all charges that are filed with the EEOC.And a recognition that the vast majority of private sector enforcement dollars are being spent doing just that, which makes the EEOC, by nature, a reactive Agency instead of a proactive Agency.And I believe that that needs to change if the EEOC wants to be a meaningful force in changing the American workplace.
So my suggestion is that when you undertake the development of this strategic enforcement plan, that a brutally ruthless triage system be developed for what claims get investigated, because you'll need to shift dollars from charge management to charge processing systems to be able to undertake some of the things that might make the most difference to the EEOC and being a force for change.
So in terms of a ruthless triage system, in response to Commissioner Feldblum's request for categorization of what should be looked at, I have three general categories of the types of charges that should be investigated by the Commission.And these are categories within which the Commission can identify priorities. So the general categories are as follows; first, charges involving the development of the law where statutes have recently been passed or amended, and if there's no such legislative activities in the recent past, then the focus should be on the development of the law where it is unclear or where it appears that there is a need to educate the courts on the interpretation of anti-discrimination laws.
Second, charges involving industries that are targeted for enforcement efforts.One of my co-panelists, Marc Bendick, is going to be speaking on information that indicates that there are still egregious indications of systemic discrimination in certain industries in the United States.And those industries should be targeted by the EEOC just as OSHA targets industries that have terrible records of accidents in the workplace.
Third category, charges involving employment decisions that are difficult for private attorneys to prosecute on their own, for instance, hiring claims.The EEOC needs to be more of a partner with private Attorneys General and allow those private Attorneys General to operate effectively where they can and for the EEOC to pick up the slack where they cannot.And so those are the three general categories that I would suggest that the EEOC Commissioners incorporate into their national enforcement plan so that it can more effectively direct some of its budgetary resources to other efforts.
And very briefly, since I'm almost out of time, those other efforts that I would highlight would be; first off, information gathering, which I believe that Marc Bendick is going to be speaking more on; second, outreach efforts that are targeted towards employers, particularly small businesses, and that are helpful to small businesses.In other words, instead of placing everything on a Web site, it would be helpful for the EEOC to partner with small business entities, such as the SBA, to use their email mailing lists to disseminate information that might be helpful to small businesses in digestible chunks, such as the email tip of the month that says, here is a hiring practice that will benefit you, not just to avoid litigation, but to decrease conflict in the workplace to make for a more effective structure that is functioning at lower dollar values for you.Those are just a few of my thoughts.
CHAIR BERRIEN:Thank you Professor.Now we'll hear from Daniel Kohrman, National Employment Lawyers Association.
MR. KOHRMAN:Madam Chair, other Commissioners, General Counsel, and staff, thank you for organizing this, I think, important discussion and for inviting me to participate.I'm a member and officer of the NELA, which is the largest organization of attorneys in the United States which represent employees in cases in all the areas that the EEOC has jurisdiction, among others, and I'm here in that capacity only.In my day job I work for AARP on age and disability cases, and you've gotten statements from AARP on some of the priorities that they have.
I'm not going to repeat some of the specific recommendations that NELA has shared with you in our written text.I just want to say, at the outset, that those reflect very carefully thought through suggestions that have been communicated in a series of written statements to the EEOC over some months, and even years now, and I'm just going to stress a few points, two really, and maybe refer to one or two other statements that you've received from other folks that I think are particularly important.
First, I think it's important to note that there are important linkages between improved customer service and more effective enforcement, which is to say, in the strategic plan, there's a focus on customer service.I think all the points in the strategic plan are related, but really, there's a suggestion that customer service, on its own, is an important value.That's true, but it's more than that. And the examples that we focused on are some things that have been touched on already; providing respondent's position statements.Not only is that a matter of responding to people who file charges and private counsel who are representing those clients, but they have an important impact, in our view, in helping the EEOC get the clash of views between employer and employee that help the EEOC determine whether there's a real case there for the Agency to deal with.In addition, they provide some clarity for the parties to determine whether this is a case that really ought to be resolved short of litigation in some kind of conciliation or mediation.
And third of all, they give private counsel charging parties an indication whether this is really a case to proceed with or whether there isn't really much there in the end.Without that kind of customer service, you don't get effective private enforcement, which, of course, is a very important part of the enforcement process generally.
The other example we've used is, sharing charging investigative files and it has the same effect, of course, of clarifying for the parties whether there's a case there.
The second point, and this is also something that other folks have alluded to, but I want to put a point on that is relevant, particularly, for the folks I represent, private counsel who deal with most of the cases, most of the charges, that go to litigation that the Agency has determined are not worthy of its strategic enforcement priorities, and that is that there are trade-offs involved in focusing investigative resources on fewer cases' particular priorities.And that is, there is always a danger of those resources being drained from at least some kind of competent investigation of the sort that my colleagues have referred to and whether it's the "B" cases or the cases that, frankly, might be strong enough for plaintiff's counsel, which is their experience; cases that are turned down by the Agency, no-cause found, and yet, end up in very positive resolutions, high-money verdicts, or settlements.Those cases can benefit greatly from some kind of useful investigation.The problem is, though, that if so many investigative resources are drawn away to the strategic priorities they'll be nothing left for the cases that might end up vindicating the purposes of these statutes, and the problem that you have to add to that as well is, if, in order to get some level of competent investigation for the "B" cases, just to use a shorthand, it can't be that the Agency allows to happen what so often happens now, which is, in order to make sure that someday, some time, some sort of investigation is done, those cases and their resolutions are delayed months and even years.
So those are the trade-offs that we see, the members of our organization see, down the line after the EEOC has made its choices, that we want you to be mindful of.
CHAIR BERRIEN:Thank you.We'll hear from Professor Eisenberg now, University of Maryland School of Law.
MS. EISENBERG:Thank you Madam Chair.Thank you for the opportunity to address the Commission today.In addition to being an Assistant Professor of Law at the University of Maryland School of Law, I also direct the Center for Dispute Resolution at the Law School, and there are two areas of my expertise I'd like to focus on today; pay discrimination and also alternative dispute resolution.
So my written statement focused on pay discrimination and linked to some law review articles I've written on the topic, and as shown by the experiences of Lilly Ledbetter and the women at Wal-Mart, pay discrimination tends to be a hidden problem and those women who act as private Attorneys General tend to be unsuccessful in the courts.And given how difficult it is for women to succeed on their own through litigation, the EEOC can play a critical role in both promoting sound compensation practices by employers and attacking systemic violations of Title VII in the Equal Pay Act.
But as I explain in my scholarship, litigation alone is unlikely to be successful and I urge the EEOC to consider a multi-pronged strategy in the area of pay discrimination that will focus, both on preventing the problem in the first place at the pay setting stage, and then providing more effective relief when it actually occurs.So I suggest a three-prong strategy in my remarks.
The first would be public outreach and education, both to employers and employees, and these efforts would be targeted at some of the structural and cognitive aspects of pay discrimination that litigation often cannot reach.So, for example, the EEOC, working with business groups, could conduct employer workshops, especially for small businesses, to help educate businesses about how to develop an effective pay compensation practice and policy that has clearly-defined goals, performance standards, and also, auditing controls.
These types of sound compensation practices can eliminate pay disparities between employees who are performing substantially equal work.Second, employers can also be educated about how the lack of a pay system, or pay systems that invest too much discretion in the hands of individual managers, as we saw in the Wal-Mart case, can cause a host of internal equity issues, both pay discrimination and other morale and productivity problems among employees.
Employees can also be trained about how to research their own market value for particular jobs in particular areas, and also, how to negotiate fair wages with their employers.The second part of the multi-prong strategy would be pay data collection and pay audits.The EEOC can promote greater employer self-regulation through the required reporting of pay data by gender and also by periodic targeted compensation audits similar to those that are conducted by the Department of Labor for wage and hour violations, and this may be an area where the EEOC can work together with the DOL to look at wage violations of the Equal Pay laws.
Pay discrimination is an area where shining a light on the problem can sometimes solve problems before they turn into fodder for litigation.As Justice Brandeis once said, sunshine tends to be the best disinfectant.
Third, of course, these efforts may not solve all problems, so I applaud the Agency's focus on systemic litigation in the area of pay discrimination.As I said, individual plaintiffs tend to be unsuccessful, but in my research I found that, when the Agency brings a case, it tends to be more successful in the courts in this area.
And as you think about strategic litigation strategies, I'd also urge you to continue to invest significant resources in your mediation program and develop a broader ADR program.Part of what my students do in the mediation clinic at the University of Maryland Law School is mediate cases that are referred by the federal sector EEOC in Baltimore.And I also practiced law for 15 years before becoming an academic and had quite a bit of experience with the private sector side mediation program, so I'll just throw out a few ideas that might be helpful.
One is, consider making mediation available for all charges if the parties request it.Second, allow mediation throughout the charge process, not just pre-investigation, but while the investigation is going on, and post-investigation as well.Third, consider adding additional ADR processes to your program, for example, you could have fact-finding conferences that would be a forum for sharing information between the parties, and perhaps having an investigator involved to give some guidance on how a charge might be resolved.The Maryland Commission on Civil Rights is experimenting with this kind of program, for example, and is having great success.Fourth, provide training to EEOC mediators on more effective mediation processes, and also, provide training to the consumers, the lawyers who will be advocating on behalf of clients in the process, about how to make best use of the ADR program and how to get the best results for clients.Thank you.
CHAIR BERRIEN:Thank you.And now we'll turn to Joyce Margulies.
MS. MARGULIES:Thank you all for including me and I'm very honored to be part of such a distinguished gathering.As Gary said, I also was shocked to find how much agreement there is among some of us, especially Joe.
MR. SELLERS: And that would surprise everybody?
MR. SINISCALCO: Or he agrees with us, I don't know which one it is.
MS. MARGULIES:Oh, I'm sure he agrees with us.Okay.I believe my background, which is as an in-house employment lawyer for nearly 30 years with a large corporation, and then the last threeyears, having my own solo practice working with small to medium-sized businesses, will be a helpful perspective and useful to the systemic enforcement plan.Did I do it?
COMMISSIONER FELDBLUM:Strategic Enforcement Plan.
MS. MARGULIES:Oh my God, I knew I'd mess it up.Okay.I also want to make sure it's understood I'm making this statement on my own behalf and I'm also really going to focus on pre-litigation issues because that is where my expertise lies more than on the litigation side.Also, I did do a written statement which has a lot more detail, because I've been trying to practice this five-minute deal and I don't know if it's going to work.
Okay.So, first I'd like to focus on investigations, and as I said, I think we all agree that quality, efficient investigations are very important, timely investigations are very important, and when I was in-house in a large corporation, I learned the importance of working with processes that ensure consistency, because that helps enormously with quality and with efficiency in operating a corporation, and also, I think, in operating the Agency.
Now I know there are a lot of different issues that people in the EEOC face, that we don't face in corporations.There's structural issues, there's statutory issues, but I still think there's relevancy from one to the other; from corporations to the Agency. So one thing that others have noted, and that I noted, was the lack of consistency among offices.And I think to improve consistency, which I happen to think is something that should happen, in order to improve consistency, I would suggest taking the instruction manual for investigators, taking excellent supervisors, good investigators, work on updating the manual, and also, work on resolving any ambiguities in the process that would slow down the process.
For example, several people have alluded to the issue of the respondent's statements being given to the charging party. Well, that is an issue and it comes up, it gets discussed, time is wasted in these discussions.I think that's an ambiguity that could get resolved.Of course, I would suggest it be a mutual exchange and I would suggest that the investigators be given guidance in how to deal with confidentiality issues.
When you're dealing with comparators you're sharing confidential information, if you're dealing with the ADA you're sharing medical information, and consideration has to be given, and guidance given, to investigators on those issues.And if you give that guidance, they won't have to worry about it anymore.It's there.
Another way to expedite and improve charge handling is something else that people have alluded to, is re-invigorating and updating the priority charge processing.I totally agree with triaging charges and I think what we end up with is the "A" charges, the "C" charges, and then a huge chunk of "B" charges.I think there's a way to train investigators on how to triage the process for handling different categories of "B" charges. There's somewhere, obviously, some work has to be done, but it doesn't require a full-blown written position statement and an onsite, for example.So I think guidance should be given and experienced supervisors should help investigators with that process.
And then the other idea that I had, I don't know if it's workable, but I kind of like it, is this idea of specialization.ADA charges, sexual harassment charges, they're more complicated, give some investigators special training in handling those, direct most of those charges to them.I'm not saying do an ADA unit or a sexual harassmentunit in every office, but try to get the attorneys who have more expertise handling those charges.
I'm a big proponent of the mediation program.I have some suggestions of how to get more management participation, but most importantly, and I think you just referred to that was, expand how many cases can be mediated.Mediate "A" charges, not at the beginning, okay?Not like, do you want to mediate? But maybe do some agreed upon discovery.Do something that the Commission feels, yes, it's gotten to the bottom of the charge, but then, put it into mediation.
And that could also happen with systemic charges.Now, I know there are issues where the Commission wants charges to have a deterrent effect resolution, of charges to have a deterrent effect, how do you publicize what you've done in mediation without violating the statute?I've suggested creative ways to doing that, in other words, you can report on, you know, how things have happened in certain industries.You can report on amount of money collected.I mean, there's ways of publicizing without revealing, I think without revealing, who the respondents are.
CHAIR BERRIEN:Can you wrap up?I'm sorry.
MS. MARGULIES:Yes.Okay.Conciliation, I've talked about it in my written statement.The rigid demand for full relief, I think, is a significant problem.It makes employers who go to their CEOs or business owners look ridiculous because -- well, they look ridiculous, and they need to have enough information, and they often don't get that during the investigation.Thank you very much.I'm sorry I went over.
CHAIR BERRIEN:Thank you very much.We'll go now to Dr. Bendick from Bendick and Egan.
MR. BENDICK:Madam Chair, I'm Marc Bendick, an economist, researcher, and sometimes, expert witness for your Agency.My suggestion is that the EEOC allocate a substantial share of its enforcement resources, I'll be bold and say half, to strategic enforcement campaigns in a small number of industries where discrimination is unusually egregious and potential, enhanced opportunities are unusually large.
Strategic targeting of enforcement is a well-established, state-of-the-art practice with many precedents in the private sector, state and local government, and federal agencies from the IRS to the EPA.The OFCCP has sufficient resources to review only 2-1/2 percent each year of the federal contractor establishments it supervises, and it uses statistical analysis to select establishments with the highest probability of significant violations.
These common sense practices by the OFCCP are sometimes considered irrelevant to the EEOC because the OFCCP enforcement is not charge-driven. But that ignores a more fundamental similarity between the agencies.Just like the OFCCP, the EEOC must choose a very limited number of enforcement actions to pursue from among many choices.In 2011, the Agency resolved about 9 percent of the number of charges it received in that year and initiated litigation only 300 times.
These numbers are not very different from the OFCCP's 2.5 percent.In deciding what charges to pursue and how deeply to pursue them, the EEOC delegates extensive discretion to its local offices.I recommend shifting that balance pretty dramatically toward nationally identified priorities.I do not suggest moving away from employee charges as the basis for enforcement, only modifying which charges are acted on.Would industry targeting result in more equal employment opportunity than present approaches? Scholarly research already identifies many industries where employment practices are substantially more problematic than in the overall labor market.The EEOC itself has produced a number of studies of this type on finance, mass media, high-end department stores, and law firms.They're there for anybody to see on the EEOC Web site. But under my recommendation, the Agency would take them down off the Web site to turn them into something that's systematically connected to the decisions which are made concerning which charges to pursue.
My written testimony summarizes research on several other industries where discrimination has been demonstrated to be much worse than in the average industry, including construction, high-end restaurants, firefighting, public utilities, and mining.For example, my study of African-Americans in the advertising industry details how, as discrimination has diminished sharply across the overall labor market, systemic barriers to equal opportunity in this $31 billion-a-year industry remain largely intact.
In other words, the 1960s world of Mad Men remains alive and well on Madison Avenue in 2012.For Blacks and Whites with equal qualifications, racial gaps average 38 percent larger in the advertising industry than in the overall labor market.Pay inequality is more than twice as large in that industry than in the overall labor market, and the degree of occupational segregation is 60 percent higher.
Black under-representation among managers and professionals in the industry total 10,000 jobs.The divergence between racial equality in the industry and the rest of the labor market is more than twice as large today as it was 30 years ago.Given all those facts, which research has established, it defies common sense that the EEOC is not all over this industry like the proverbial hair on the gorilla.
When enforcement has targeted such hotspot industries, major improvements in employment practices have often followed.Strategic initiatives by several prominent private Attorneys General, private law firms, have targeted the supermarket industry, large retail chains, financial services, among others.The results have been thousands of new opportunities for women, minorities, and other protected classes.Some, in the firms where litigation was pursued directly, the rest, from other firms in the same industry who were shocked observers or bystanders to the litigation.
Furthermore, by pursuing multiple cases in the same industries, the litigators became more knowledgeable and efficient in their work.For example, they became increasingly sophisticated about what injunctive relief to seek.
CHAIR BERRIEN:Dr. Bendick, can you wrap up?
CHAIR BERRIEN:Thank you.
MR. BENDICK:To implement the industry-level strategy I'm talking about, I've recommended eight actions in my written testimony ranging from developing the research basis for selecting industry targets, to making and announcing these targets, to reflecting these priorities in the field office practices and staffing.Thank you.
CHAIR BERRIEN:Thank you very much.We have 20 minutes for questions and feedback from the panel.So each colleague has to keep questions short.We'll begin with Commissioner Barker.
COMMISSIONER BARKER:Well again, thanks to everybody and I agree with so many of the comments.And again, I agree with Joe Seller.Gary Siniscalco, appreciate your comment, and Margulies, so many of what you did, but Professor Modesitt, is that right?
COMMISSIONER BARKER:Modesitt, thank you for your comments about reaching out to small business and, curiously enough, and Reuben Daniels is in the room, and Reuben is on our Task Force with me, but these are exactly some of the things we've been talking about, isn't it, Reuben?Because what we are realizing is that, while we do, and have done for years, a great deal to reach out to small business, in this environment, it's not effective.
And so what we're looking at is making major changes to our Web site so that we have a portion of that Web site that is easily read and quickly interpreted by the average small businesses so he gets the information he needs and to just do reach out, you know, in the electronic world the way so many small entrepreneurs expect to receive information, but thank you again.
CHAIR BERRIEN:Thank you.Commissioner Feldblum.
COMMISSIONER FELDBLUM:Thank you. I've got one question and oneapology/clarification.So the question goes primarily to Gary and Joyce, but other people want to answer. We've heard a lot that one of the ways that we need to be more strategic is figure out our relationships with private Attorney Generals, how we can leverage that.My question to you is, what are the boundaries of what you think we can and should be sharing with private Attorney Generals based on our investigations?Because, obviously, we have broad powers of collecting information, it's not supervised by a judge in terms of discovery, so what are the boundaries?
The apology/clarification goes to Vice Chair Silverman, "You still here Leslie?" She had to leave, but you'll all report to her, because she was like, "That's not what I said!"And what she did say makes so much more sense to me.She didn't say, just have as your "A" charges the egregious and then leave it up to the field.What she said is, and she explained is, yes, figure out what your list of priority areas are, but after that, don't just say, and everyone, that's the priority areas, based on, sort of, where these issues maybe are most salient, you designate certain offices to be the leads on those, because one of the things she said in her written testimony, which I completely agree with, is, apparently, there have been systemic plans developed by districts.I can tell you, as a Commissioner, I have never seen even one of them in my two years and some months here. I guess, somewhere it said, no-fault leave policies under the ADA should be a systemic, you know, priority.I think that's good.But then instead, we have tons of these cases all over and I feel like Commissioner Lipnic and I are a broken record, sometimes, inside the Commission of, and what's our strategy for all of these?
So I want to clarify that that was her suggestion and to invite comment and reaction from the group on that.
CHAIR BERRIEN:Thank you.Commissioner Lipnic.
COMMISSIONER LIPNIC:Thank you Madam Chair.Okay.Just a couple of questions and depending on the indulgence of the Chair whether you get to answer them or not.Okay.So first question is to Dan, and I'm not sure I heard you say, and so whether it's in your capacity as NELA, AARP, or the half-dozen other hats that you wear, whether you agreed with the idea of limited investigations.So we'll come to that.
Then, to Joe and Gary and Joyce, I'm interested in what would a quality limited investigation look like or be like, and what would be satisfactory to, either the plaintiff's attorneys or the management attorneys?
And then, this actually is a question for Marc Bendick, but I'm interested, actually, in comments from anyone who wants to comment, but in particular, from Gary and Joe on this.So among the industries that you talked about, and I'm a proponent of looking at certain industries, but let's say finance, you talked about finance, and again, as we all know, broken record, we are an Agency with limited enforcement resources.
So, some would say, well, why should the EEOC spend its time in cases in the finance industry where, likely, some of the plaintiffs are going to be, or complainants, are going to be rather well-heeled, so why should we, as the government acting in the public interest, where we have lots of people who want our time and resources, isn't it better for us to concentrate on some different industry where we know, in fact, that, you know, again, using finance as an example, the finance industry is being well-represented by the private bar?Those are my questions.
CHAIR BERRIEN:Thank you.General Counsel.
GENERAL COUNSEL LOPEZ:Thank you. I want to ask this group, particularly the management side and plaintiff side lawyers, the same question that I asked the last group, and that is, are there certain areas that the private Attorney Generals are not getting to? Are there certain geographic areas that are not covered by the private Attorney Generals, or substantive areas, based on your experience?And I think we have a good geographic representation.
The second question is related to the same subject, and that is that, we are a public law enforcement Agency and everybody is talking about outreach, and everybody is talking about the importance of deterrence, and one of the ways that we do that in litigation is through the execution of consent decrees that involve non-monetary relief and the publication of the resolutions as a way to educate the public and to deter discrimination in the future, not just at that employer, but all employers.
Now, one thing that I've seen with many of my plaintiff side friends is they come up and they say, I have a smoking case.How did that turn out?Well, we resolved it.What happened?It was resolved confidentially.How common are these confidential settlement agreements between the plaintiff's bar, I know Rule 23 lawyers don't do that because they have to do it publicly, you know, between the plaintiffs and the defendants, and how frequently do they include non-monetary relief?
CHAIR BERRIEN:Thank you.Director Kores.
DIRECTOR KORES:I want to repeat my question that I posed to the last panel, to this panel, because I didn't get much response, but I think that there might be more response here because it might fall right into what Dr. Bendick was talking about, and that is, the utilization of the Commissioner's charge.Is that the sort of thing that you're envisioning, Dr. Bendick, and do you have some suggestions on how we could improve the effective use of that tool?
My second question is, I would like an expanded discussion.I'm a big proponent of mediation myself.I'm very proud of the EEOC's mediation program, and to the extent it can be appropriately expanded, I'm in favor of that.I am concerned with a comment that Joyce Margulies made, she and I have had this discussion, about whether there can be any deterrent effect from a mediated resolution.If there can be, what would it be?How would it affect the behavior of other employers for matters which might be litigated publicly and result in a consent decree that would be broadly publicized, whether you can have that same result from a confidential settlement of a situation which no one will ever know about just by the terms of the forum?
Dr. Eisenberg, that's particularly something I'd be interested in hearing you comment on.
CHAIR BERRIEN:And my question to this panel, Professor Eisenberg and most of the previous panel focused on issues that we ought to incorporate within our strategic enforcement plan, or consider as Agency priorities for the strategic enforcement plan, but Dr. Bendick has suggested an alternate way of approaching it, which is to look at the data, and then based on the data, identify industries.So I'd like to hear from those who have not weighed-in on that point, to the extent time permits, what your view is about our consideration of issues as opposed to our consideration of industries or some data-driven way of identifying parts of the workforce, or workplace, that we ought to concentrate our resources.
With that, I think we should go in the same order that you all made comments and Joe Sellers.
MR. SELLERS:Okay.Well, I have a long list here.I'll try to be very quick.First of all, on the question I think Commissioner Lipnic asked is, what would a quality limited investigation look like?The answer is, I don't think I can say in a three-minute version of this, but I think that what I would suggest that they consider is devising a series of decision trees that call for, based on various outcomes from various stages of the investigation, direction.You know, at some point, if there's certain information gathered and it leads to a certain conclusion, the likelihood is that more resources shouldn't be devoted to this particular charge, or more information is needed before you can go to the next step.There have been some fair employment agencies that have used a model like this, so I'm happy to talk to you about it.It's not something I've just made up as I was sitting here today. But I think it is probably worth even approaching those agencies to see what their experience has been and see whether it's worked as well as it was originally conceived.
DIRECTOR KORES:You don't own the software program for it?
MR. SELLERS:I don't have the software.In fact, I cannot find it.I drafted all of these and I can't find it.So sorry.I get nothing out of this.The private/public issue of the Commission's limited resources being devoted to cases that are in industries where a private bar may be active.You know, I don't think there is a one-size-fits-all rule to that.I mean, I'm involved in a case right now where the Commission has a parallel case, because ours is in arbitration.And I think one thing to consider as you go forward is the phenomena of potential increasing use of arbitration, whether there are going to be clauses in arbitration that preclude the pursuit of systemic or class-type cases, something the Commission would not be bound by.
So I don't know that I would presume, as just one example, that just because there's an industry where there seems to be, from the data at least, some basis for disparities that the Commission should stay away from because the private bar is necessarily going to be handling it and handling it effectively.I think there is room for a Commission role, even in some private sector cases.The Commission is the long-term institutional player in this area and, I think, brings an enormously valuable perspective about how things have gone in the past, potential injunctive relief, and the like, that I think isn't duplicated in any event by the private sector.
Mr. Lopez has asked about areas not being reached by private Attorneys General.I mean, I don't know of any geographic area.I would suggest to you that, again, you think about the impact of the growing use of arbitration.I think that's an area that, maybe you've thought about it, I'm still thinking about it, but I think it's an area where the potential impact for the Commission that may leave the Commission wide swaths of potential areas for enforcement that, historically, have been pursued by private parties.
Sorry, I have one last thing, the question about the deterrent effect from directed resolution.You know, I think that there are occasions where mediation, for that reason, the Commission may be concerned about having an "A" charge, which may have broader public significance, be mediated and resolved. On the other hand, you have to look at the interests of the parties and the charging party may have a legitimate interest in saying, I know this is a broad public issue, but, you know, this is my claim, this is my life, I want to resolve it, and I think those interests have to be balanced.And I don't think there's a, you can never use it for this purpose or that you should always use it for this purpose.I think it has to be a, you have to inquire of the parties.Thanks.
CHAIR BERRIEN:Thank you.Mr. Siniscalco.
MR. SINISCALCO:So again, I agree with everything that Joe just said.So let me expand on it just a little bit.I don't think every settlement is either a confidential or a consent decree.A consent decree implies having filed the complaint, and getting court approval, and so forth.There are lots of opportunities, or there should be lots of opportunities, for settling cases that may result in a public settlement, or maybe not even, it could be a confidential settlement.And this is, particularly, an important area I think you need to think about as you're developing your systemic enforcement program.
You've got some, what, 600, 700 cases in the systemic process.A lot of them fall out for various reasons, or they don't go all the way forward to a cause decision, but they may warrant some interim discussion.You know, Joe and I will be involved in cases, for example, they'll ask for a little bit of discovery, or maybe in the context of early settlement discussion, we'll give them some discovery, and then we sit down and talk about settling it.
And there's no mechanism for the Commission to do that.Not only is there no mechanism, there's no one to talk to about that.You either have investigators, and again, everyone blames the investigators, it's not the investigators, it's got to be either the district director you go to, and they're going to say, well, no, you know, I can't do anything because we haven't found cause yet; we have to investigate.And so their hands are tied by that.Can't go to a regional attorney because they'll say, no, it's got to be done by the compliance side.
So there's no mechanism, there's no one to talk to about how to resolve cases, short of a full-blown investigation of either cause or no-cause.And so you really need to think about that for many of these cases that ultimately don't warrant going forward.And I think if you apply that in the context of the decision tree, you'll get much farther.
On this issue of sharing statements, really, sharing discovery, I think you need to think about the Title VII implications of that, you need to think about how that will be abused, in part, by really knowledgeable plaintiff's lawyers who will then simply use the Commission as a vehicle for spending a lot of time and effort on charges and investigations that they will simply then get the right to sue, and lead on, and how there will also be a problem from the employer's perspective.We could spend an hour, probably, talking just about that issue, but I think there are real significant issues you need to think about, and perhaps, defer that discussion.
I think in terms of targeting the companies like, for example, in financial services, I may be saying something I'll come to regret, but I'll channel President Obama here and talk about even the 1 percent are entitled to protection.And so to the extent that you have high-income wage earners, or women, or minorities, who want to be high-income wage earners, this is an area that you should not simply leave for the private bar.
Certainly, the underserved, immigrants, the poor, where you really can't get lawyers to get a big bang for the buck, because they don't take those cases, then certainly, the Commission needs to think about that, but you have so many different competing priorities, so many different statutes you need to pursue.You need to be thinking cohesively about how you do this.You should not be whipsawed by charging parties with respect to strategic enforcement. You need to think of it in terms of Commissioner charges, really good Commissioner charges, not some of the ones that tend to just be thrown out there, directed investigations, not just the EPA, but the ADEA.
You need to think about it in the context of ADA and where you're going there.So you've heard all these advocates talk about various priorities and they all need to be thought about.I don't think you can eliminate anyone of them, but you need to think about a system that really is much more cohesive and thought through from the Commission's level in conjunction with the district offices.But it's got to be a give and take on both ends.
CHAIR BERRIEN:Thank you.Professor Modesitt.
MS. MODESITT:I have twocomments; one, on the Chair's question about going into a data-driven system.Yes, I think that that's the way the EEOC should go and I think that you need to think about data collection and enforcement in more broad terms.Enforcement is not just litigating and getting deterrence effects through litigation. Enforcement needs to be thought about in terms of a partnership with the employers so that the employers are induced into behaving well at the outset.
Second, in terms of Commissioners' charges, absolutely, that is an area where the EEOC can control its own destiny rather than being merely reactive.And I think that has been an underutilized part of the EEOC and that goes hand-and-hand with Mark's comments about directing investigations and directing resources towards industries that are the most egregious.And if you don't want to go after the financial services industry, there were several others that Mark mentioned that have egregious records where you do have workers that are more on the margins of society.
CHAIR BERRIEN:Thank you.Dan Kohrman.
MR. KOHRMAN:Let me just start with the question that Commissioner Lipnic asked, and I'll preface the conclusion by saying there's enormous frustration among private plaintiff's lawyers about the quality of investigations.That said, there's much more concern, vastly more concern, with the delay in the resolution of charges and the inability to get basic information.That's my description, but of the kind I described.Some kind of coherent authoritative statement from the respondent, what their position is, what their defenses are, and then later on, getting the investigative file.
Our members are fully prepared to work-up these cases themselves and they do it all the time.You know, the concept, quality limited investigation, you know, if what that means is, limited investigation and quality is sort of trailing, maybe that's a problem, but if it's serious, I think that would be something that most of our members would be comfortable with in the sense that, they're much more frustrated with investigations that go on for years, memories fade, witnesses vanish, and they can't make their case, than the outside chance that, by waiting another year maybe they'll get some more information in a competent investigation.So I hope that answers your question.
On geographic and substantive areas.I think our experience is that there are parts of the country where there is very limited access to private Attorneys General.I mean, not every place is San Francisco, Washington, L.A., you know, and there are, probably, fewer charges from those places. In some instances, you know, there are states where we have almost no members.And there are some states where that is the case, where there probably are, virtually, no experienced highly-competent private Attorneys General.And so for the EEOC to withdraw, in some sense, could be a problem.
On confidential settlements, the General Counsel's question, it's a huge problem under two statutes -- yes?
CHAIR BERRIEN:I just have to interrupt you for one minute.
CHAIR BERRIEN:There definitely won't be time, I think, to go through all of the questions, so I'm going to ask if you could --
MR. KOHRMAN:Okay.Can I answer that one thing?
CHAIR BERRIEN:-- just closeout.
MR. KOHRMAN:Let me just answer this because this is important and this is what I do.In the Age Discrimination in Employment Act, any collective action, any big case, is not subject to Rule 23 and the pressure is tremendous to make, even those big cases, confidential, and only about money, because of the dynamic that was discussed earlier.And in the disability area, there's a different problem that has the same result. Class actions are very rare, they're very difficult, they're disfavored for all kinds of reasons I think are wrong, but that's the pattern.
And so what you get is, individual cases which, if they're very well worked up, you can change a policy, but you only get an individual case, and if that case is resolved by a confidential settlement, and I've even talked to the General Counsel about a couple of these cases, individual cases settled resolved, which I think raised systemic policy issues, and no one's going to bring them unless another lawyer decides they're going to do it, which is very tough, or the EEOC does it.
CHAIR BERRIEN:Thank you.The remaining panelists, if there were specific questions directed towards you, could you please start there?If there were no specific questions, then please address one of the questions that you feel most relevant.Professor Eisenberg.
MS. EISENBERG:I'll try to be really brief.The question about confidential settlement agreements, how frequently they include non-monetary relief.Confidential settlement agreements tend to be the rule rather than the exception, I would say, for most employment discrimination cases, but there are quite a few that do include non-monetary relief.And in terms of the question of will this, you know, defeat public consciousness raising if we refer more cases to mediation?Confidentiality is something that can be negotiated, as I think Joe Sellers said, there may be some cases where the EEOC and the employer could negotiate the terms of a press release in terms of that settlement.
And I also, just in closing, in looking at the mediation program, don't focus on money as, sort of, the success rate of the mediation program.I think that has a lot of perverse incentives, both for the mediators and, sort of, putting pressure on claimants to, sort of, take deals, and also on employers to think, you know, money is really the only thing available here.
I think that it would increase the meaningfulness of mediation and also the integrity of the mediation process to not have settlement rates and money as, sort of, the measure of success of the program.
CHAIR BERRIEN:Thank you.Ms. Margulies.
MS. MARGULIES:Two quick points.I think to Kathy's question about the mediation and making it more publicly known.The NLRB issues a quarterly report of the General Counsel.Now, they do name companies, but it's something that's equally looked for and perhaps it's something the Commission could do, a quarterly report saying, these are the kinds of cases we've looked at, without naming names, without naming districts, but talking about the kind of relief and the money.
You might want to look at that NLRB report.Everybody waits for it to see what the NLRB is focusing on.I mean, different situation, but useful.And the other thing was, just in this whole issue of prioritization, the one thing I would say is, it's got to be coordinated.I cannot imagine, with all the needs and all the little money the EEOC has, not to have somewhere, a central decision maker, maybe not a decision maker, but something that's drawing this all together, rather than having every district office out there doing its thing.
And I know there are tons of considerations, but if there's a way to get there, that's what I would suggest.
CHAIR BERRIEN:Thank you.Dr. Bendick.
MR. BENDICK:I'll just comment briefly on Commissioners' charges.Obviously, in a strategic targeting system, those are the ideal instrument, because you can do exactly what you want to do.But I think there's an important countervailing political consideration, that is, the Agency is sitting there on top of huge mounds of charges.The Agency does not want to open itself to the criticism that it's ignoring "real problems" and inventing problems of its own.
So I think the best use of Commissioners' charges would be as a kind of very strategically targeted limited numbers of Commissioners' charges, where the first resort is that you go looking among existing charges for charges that will give you the hook to go after your strategic target industries, or issues, and only if you fail to find them, and you usually won't fail to find them because there are lots of charges out there against almost everybody, and because you'd expect bad actor firms, or industries, to be generating lots of charges.
Only if you fail to find those charges would you resort to Commissioners' charges.But first, focus more on which among the existing charges you pick to pursue, rather than ignoring them and going to Commissioners' charges.
CHAIR BERRIEN:Thank you very much.Thank you to this entire panel for your input.We appreciate it and we look forward to more interaction as this Strategic Enforcement Plan develops with you and all of our panelists today.We are going to break now for lunch.We will reconvene at 1:40 for the federal sector roundtable.I want to thank you all.
(Whereupon, the above-entitled matter went off the record at 1:13 p.m. and resumed at 1:37 p.m.)
MS. WILSON:Good afternoon.Before we begin, is there anyone here in need of sign language interpreter services?Okay, Madam Chair.
CHAIR BERRIEN:Thank you.We'll convene the afternoon session of our meeting on Development of the Strategic Enforcement Plan and meeting for public input on that plan.I want to thank all of our panelists who have been here, who have joined us this afternoon.I want to thank those who have been here since this morning for your participation in today's meeting.
This afternoon we will be hearing now from a panel on federal sector issues.We spent this morning hearing from people about private sector and State and Local Government enforcement issues.And this afternoon we are looking forward to hearing from this panel concerning the Strategic Enforcement Plan and suggestions related to the EEOC's work on behalf of federal government employees.
I'm happy to welcome all of you.Just quickly the ground rules.We've asked you to make opening statements of no more than five minutes.At the four minute mark, the yellow light will come on, five minute mark the red light will come on.We have a very, very full agenda and full panels.And we're trying to reserve a significant amount of time for discussion by the panels.So I will be strictly enforcing the time limits.And I appreciate your cooperation.
We also have Mr. Julius Crouch from the National Coalition for Equity in Public Service participating by phone.At the end of the opening statement, each Commissioner, the General Counsel and Director Kores will be invited to ask a question.
And we're going to hold on hearing from the panel until all of the questions are on the table.And then we'll open it for discussion.So thank you very much.And we will begin with Assistant Secretary for Civil Rights, Joseph Leonard, from the U.S. Department of Agriculture.Dr. Leonard.
CHAIR BERRIEN:I'm sorry to interrupt you.For all, the green light should be showing.We want to make sure we record all your comments.So please make sure that the green light is on when you speak.And keep it muted, or on red until you speak. Thank you.
MR. LEONARD:I also want to thank Carlton Hadden and Dexter Brooks for their guidance and their technical assistance they have provided to me over the last three years.
COMMISSIONER FELDBLUM:You might also want to also just make sure that the microphone is pulled up in front of you.That'll do it.
MR. LEONARD:Okay.And lastly I want to thank Secretary Tom Vilsack for his principled leadership and guidance and trust during the past three years.I have some very general recommendations.But I will -- So I'm going to be very short on time.So I really want to have a discussion regarding them.
Firstly, my Agency has 105,000 employees.We are in as many zip codes as everyone in the federal sector but the Post Office, 2100 counties in the country.So it's important for you to know that I'm the only Assistant Secretary for Civil Rights that not only does Title VI work, but Title VII.My two colleagues in HUD and Education only do Title VI work and Education has 4,000 employees and HUD has 8,000.So I want to make these comments in regard to the size of USDA.
One, I truly believe there needs to be training.And when I say training, not EEO training, but supervisory leadership and management training for 11s, 13s, 14s, 15s, and SESs.I think it's vitally important that all EEO directors should report to the head of their Agency.I know it's in MD 715.But too often it is not done.
There needs to be greater oversight by the EEOC of individual Agency's Civil Rights apparatus.And I say that because the EEOC's backlog of cases exists because the federal employee does not trust the Civil Rights apparatus of the individual Agency.And they end up pushing cases here.
And what I attempt to do -- is there is some way - we must find a way to, in the order of relief, to find some way to truly reconcile with the said employee.Too often, it's been my experience, that the employee and the Agency go back to their respective corners to a degree, only to come out and fight another day.There needs to be some reconciliation between the two that's helpful in the long run.
One of the things I'm most proud of, in 2009 we've had the four lowest years of EEO complaints in the history, or well since, I say in the history of USDA.I don't think that's accurate.But certainly as USDA's begun to keep records.We've also -- So I'm very proud of that.
But what I'm most proud of is when I was confirmed by the Senate in 2009, 65 percent of our employees at USDA elected to go to EEOC for administrative hearing.I'm very happy to report today that 70 percent of our employees elect to come to our office for a FAD to be written.
What that says to me more than anything that there's been a sea change in the perception of our employees about our individual apparatus.And I'm quite proud of that.But the only way that's been done, and it's important for me to publicly acknowledge, is really, and I say it like this.And I say it in a very general way.We hired Civil Rights people to do Civil Rights work.
When I came on board there were a lot of ER and HR people working in Civil Rights.So we're able to make our point by hiring people to be focused and work on this issue.So I really want to thank Carl Martin Ruiz, Director of Office of Adjudication, Violet Hall and Kirk Perry who's here, for their dedicated service to employees of USDA, to make this change a reality.I know I've been very general.But I look forward to the comments.And thank you very much for allowing me in the meeting.
CHAIR BERRIEN:Thank you Assistant Secretary.And now we'll hear from Patricia Randle, from the American Federation of Government Employees.Thank you for being here.
MS. RANDLE:Thank you.Good afternoon Chair and Commissioners.We are pleased to be here today, The American Federation of Government Employees.We represent over 600,000 federal workers and D.C. workers throughout the country.I am the Supervisory Attorney in the Women's Affairs Practices Department.And I believe we're the only union that has a fair practices and women's department.
Our mission is to essentially rid discrimination in the federal workplace and D.C. Governments.How do we do that?We have approximately four attorneys and some assistants that allow us to take cases from our members and evaluate the case, determine whether or not we will represent the member based on the merits of the case.And if not, we provide guidance and assistance to the member.So the member may work with a local activist, union activist, in terms of trying to pursue the case with a EEO hearing.But they can come to us for guidance and advice.So many times we may not be forward in designating the rep, but we would actually be reviewing settlement agreements, encouraging them, and explaining to them what the process is.So with that in mind, we had looked at what areas we could present to the Commission in terms of the priority.I believe most people in federal sector know about what we believe is the inherent conflict of interest in the federal sector.You have Agency Counsel, who not only advise and represent management witnesses, but they also advise the EEO office.
We would suggest that a pilot program be provided where you could have two or three agencies participating that help the EEO investigative process.We find there's a number of areas where the EEO investigative process is flawed, probably not intentionally, but the reality is that the employees who file that complaint suffer the consequences.
Many times we realize that employees don't want to file EEO complaints.That's the last thing they want to do.Because once they do, they're going to be retaliated against.And when they call, and they call hysterically, stating that they have to have an attorney -- They don't really have to have an attorney.But they certainly have to have somebody that knows what they're doing, to help them present the case, to help them understand what's before them.
Fear of the unknown can be paralyzing.So what we do is, we again, we have training of our activists.We have also had joint training with some of the agencies to present to the employees.So some of the areas that we are also looking to see for improvement is to encourage other agencies to allow the labor force, the labor organization, to be part of the training.
Many times our members go forward, speak to EEO counselors who attempt to dissuade them from filing the complaint.And they become confused, and it becomes more difficult in the very beginning to understand what the true rules are, what the law is.So we would recommend that joint training be provided that includes the labor organizations as well as the agencies.
At the appellate stage, we have suggested the development of a triage of cases.Many times our members, we know the statistics are less than three percent of the cases are won by the complainants, but of those cases that are appealed, they wait for years to have a resolution.We would suggest a triage of cases.So that perhaps the first tier would be to review cases where the complainants have been terminated, where they have no funds coming in.So an expedited review of those cases should be employed.
The second tier may very well be when you have a final agency decision instead of a hearing, or where the complainants have actually won and the agencies are filing appeals on the AJ decisions.Just based on a quick survey of the cases that we had in the office, we looked at them, and we have seen that based on the number of cases that went to the appeal stage, they average ten months to four years. And we've actually had a case where a complainant died during their period of time pending the decision.
We note that EEOC even identifies in its website that in fiscal year 2010 agencies appealed only two percent of the AJ decisions.However, they appealed 30 percent of the cases where the AJ found discrimination.We believe that again it's so important that EEOC hire adequate staff and train staff.The administrative judges for many of the attorneys simply can't handle the workload that exists.
We do believe that early intervention should be part of the process, should be more of a process in terms of employing settlement judges or other settlement professionals that would enable the complainants to understand that EEOC is not just rubber stamping what the agency said, but really wants to hear what my concerns are; wants to resolve my concerns.We had suggested early neutral evaluation potentially be in ADR.
Mediation, I've been through mediation.There's some good things, bad things.Most important, the person who's mediating should be someone who's very familiar with the EEO process and the EEO laws.Sanctions we believe should also be imposed on agencies.And as identified in our statement, we've identified a number of areas that EEOC currently has the authority to impose sanctions.So we ask that they be employed.I would go ahead and identify that I will be available for questions, since I have the red light.
CHAIR BERRIEN:Thank you very much.And now we'll turn to Julius Crouch from the National Coalition for Equity in Public Service, who is participating by phone from I believe Detroit, the site of the Federally Employed Women conference.
MR. CROUCH:Yes.Thank you to the Chair and to the Commissioners for allowing us to participate.I'm going to give you a presentation that's going to cover a number of groups.The coalition is made up of Federally Employed Women, Blacks in Government, Federal Agents Pacific American Council, National Image and the Society of American Indian Government Employees.That is to date. We are still in the process of seeking representatives from the disabled community and the LGBT community.
For the current group, representation for each group is different.We all have an under representation problem.For the members of FEW and BIG and their constituents, the representation problem is at the higher grade levels, 13 through 15 and SES.For the Federal Asian Pacific American Council, their representation problem is for managerial and supervisory representation.They're under represented in the managerial and supervisory positions.National Image, Hispanics are the only group within the federal government that's under represented overall.And SAGE in most organizations is under represented across the board.
There is a lack of support for, and emphasis on, the use of special emphasis programs to address the needs of those constituents in the agency.We have a concern about some of the agency's efforts in reforming their human resources.Things such as pay for performance and pay banding tend to have an adverse impact upon our members and our constituents.The equity issue as far as the EEO complaint process, agencies' failure to comply with the 29 CFR 1614 requirements, and EEOC's failure to enforce those.We will admit that some enforcement has been improving as of late, but there's still a lot of agencies who fail to comply with 29 CFR 1614.
The other issue that we want to present is General Counsel involvement in the complaint process.Excuse me.Attorney's involvement in the process at the informal stage and early in the formal stage does nothing but hinder the process, and to me, scares the complainant.Complainants begin to feel that they need to go out and get an attorney, because of the agency's attorney's visible and open involvement in the process.We need to do something about General Counsel's involvement in the EEO complaint process.I thank you.And those are the issues that I wanted to present.
CHAIR BERRIEN:Thank you Mr. Crouch.I would now, we will now hear from Mr. Akinyemi Banjo from the Federal Disability Workforce Consortium.Thank you.
MR. BANJO:Thank you Chair, Commissioners and EEOC staff.It's afford me a great pleasure to be here to talk about this issue.The Federal Disability Workforce Consortium again is an interagency, you know, group.And it's an all voluntary group.This is just individuals that are passionate about the employment of people with disability across federal agency.And what we do, we come together and basically just educate ourselves. And I really want to thank EEOC for the support that we've have had, you know, over the years since 2005, particularly Dexter Brooks.He's come to present on so many issues as dictated by our members.
Some of our members are disability program managers, selective placement coordinators from the agencies, as well as, you know, employees with or without disabilities.Two things that I basically just want to zero in on today.My recent statement, and I'm just going to highlight this.I'm not naturally going to go by everything.And some of the issues already been pointed out by other speakers in terms of the complaint process in federal agency.
I think we need to understand the vulnerability of an individual with disability.Complaint is the very last thing that he really wants to go through.And I think as the Commission looks at the specific enforcement plan, I just want to say that enforcement is not, should not be seen as in terms of litigation alone, but things that can be proactively.Because by the time you're talking about judges, that's more or less, you're reacting to something that's already been done.
But what can we do ahead of time to be proactive, and to create a workplace environment that is free of discrimination, and free of all these barriers that's allowing employees to be productive in the workplace?So I have some suggestion in my written statements.Some of this was mentioned earlier, in terms of training for civil rights officials, supervisors, first line managers.But then, I'm going back to what the presenter said, in terms of the size of organization or size of an agency.That's what's not at issue. Sometimes an employee that is very close to the case, or close to the headquarters have, you know, more resources to lean on.But the further into the field you go, the more problematic it becomes and challenging.
And I'm saying this because I get calls, I get emails from employees that run into the discrimination situation and have no clue what to do.They have no understanding of what the agency, you know, process is.And the worst part is, when you hear an employee that clearly knows what his right is, and what some of the regulation says, but the supervisor or the first line manager is saying something completely contrary.
So a few things that I just want to, you know, suggest here is that I think the Commission should increase its oversight of federal center programs by conducting perhaps a regular audit; and on site quality assurance reviews;technical assistance and training of managers,especially the first line supervisors on civil rights laws. And one of the areas that seems to be prevalent is the interplay among ADA, FMLA, Workers Comp programs, when it comes to leave policies.Reasonable accommodation issue, and also recently I've been hearing about agency invoking one hundred percent healed, or fully healed, policies.
Now again, I don't know where that's coming from when you're talking about ADA or talking about the Rehab Act. So again, this is an area that I think the Commission kind of needs to zero in and see, you know, what's going on with agencies on this.There are a lot of tools that are already in place to hold agencies accountable.You have the MD 715. You have the 462 data, but in my opinion, since that, the MD 715 has basically become an annual ritual that agency just, you know, complete the reports, meet the deadline, done. But I think it should be more of a strategic tool for agencies to use year round, because every data on that form should tell agencies something. And it should trigger some reaction or action from the agency.And I believe that EEOC, the Commission needs to hold agencies accountable and responsible for these issues. So again, I think my recommendation is not so much of reinventing the wheel.I think we have the resources, we have the tools.I think we just need to do a better job in enforcing those tools and holding agencies accountable.
And the last thing I would like to say is, when it comes to litigation, unfortunately most of the charges are usually against the agency, and not necessarily against the manager or the supervisor who participate in, you know, the behavior.So therefore, behaviors are often not corrected. Because okay, let's get a case, it was settled and you get the pay.Done.Life continues.So I think that there has to be some ways for the Commissioner, for the Commission also to hold a manager that's found guilty of this thing to some level of, you know, a penalty as well.Thank you.
CHAIR BERRIEN:Thank you.We'll hear now from Ernest Hadley with the Federal Employment Law Training Group.Mr. Hadley.
MR. HADLEY:Madam Chair, Commissioners Lipnic, Barker, Feldblum, General Counsel Lopez, Director Kores.First of all, thank you for asking me to provide comments today.I deeply appreciate the service that you give to this Commission.And indeed, in turn to our nation.I criticize at times, and perhaps sometimes a bit caustically, because like you, I care very deeply about the enforcement of our employment discrimination laws.
I previously discussed our last federal sector reform attempt as attempting to put band aid on a patient who's hemorrhaging. Many of us have participated in the years over past reform efforts.Most recently a task force on the hearing process, headed by former Commissioner Ishimaru, and one on the quality and timeliness of investigations, as well as the potential conflict of interest in agencies investigating themselves, headed by former Commissioner Griffin.
There's been little in the way of results from these efforts.Confidence in the federal sector system continues to erode.And your best intentions will do little to abate that erosion.What we need are immediate and concrete actions.
Developing a new case inventory system is a worthy objective.As is having in place a determined percentage of hearings and appeals to be evaluated under a new federal sector quality control plan.
But I can't help thinking of the "Arrested Development's" Bluth family, and their attempts at a fund raiser for a disease to be announced.Vague four year plans will not stop the patient from hemorrhaging.There are some things that can, excuse me, and must be done immediately.
I believe that the most pressing issue in the federal sector is clear and definitive guidance on the role of Agency Defense Counsel during the agency processing of an EEO complaint, particularly during the investigation stage.Despite a clear prohibition on agency defense counsel intruding into that process, in too many agencies, counsel routinely insert themselves, determining what questions an investigator can ask, revealing under oath statements of agency managers prior to submission, and drafting under oath statements for agency managers to submit to investigators.
Agency defense counsel then assert attorney client privilege and attorney work product over the drafts of those statements.These practices go to the very heart of the integrity of the EEO process.Quicker investigations will not restore confidence in the system unless we also have investigations that are fair and unbiased in fact and appearance.The Commission's current guidance is obviously not sufficient for those who would engage in these practices.
We need definitive, emphatic and crystal clear mandatory guidance on the role of agency defense counsel.I hold many agency defense counsels I've worked with over the years in the highest regard.But as with all things, a few bad apples spoil the barrel.It's time to rid the barrel of those apples, before all confidence in the system is lost.
We've also, we've seen vast improvements in the quality and the consistency of federal sector decisions issued by OFO under the direction of Carlton Hadden. Yet we still see decisions which at times are conflicting, and other times contain muddled and unclear analysis.This is not in my estimation, a quality problem, it's a quantity problem.
There is no reason to expend precious resources writing yet another decision when the decision below is correct.A short form decision affirming the decision below would allow OFO to free up resources to write decisions that are concise and focus on those cases that would resolve conflicts in the existing Commission case law, or advance that case law.
Those who administer the federal sector process are split between the Office of Federal Operations and the Office of Field Programs.Administrative judges are assigned to the Office of Field Programs, even though in essence it's the Office of Federal Operations that monitors the quality of the work of those judges through the appellate process.Greater consistency in the processing of federal sector complaints could be achieved with one organizational entity that contains all federal sector functions.
Finally, I return to the notion that we don't need more studies, what we need are more actions.The Commission should appoint a task force with an outside deadline of no more than six months working from the recommendations of Commissioners Ishimaru and Griffin.And bring forward a comprehensive proposal for reform of the federal sector process.
In turn, the Commission must impose a similar deadline on itself to come forward with the necessary proposed rule making, management directives and other guidance to fully implement significant federal sector reform.The notion of achieving a general consensus has continually derailed past efforts.
We can achieve consensus on some issues, yes.In other areas what is needed is not consensus, but leadership.Leadership sometimes requires making very hard decisions that will make some people unhappy.It is however, the commitment you made when you took the oath of office.We look to you now for that leadership.I thank you again for the opportunity to share my views today.
CHAIR BERRIEN:Thank you.And now we'll here from Sharon Eller, with the U.S. Department of the Interior.
MS. ELLER:Thank you.Good afternoon Madam Chair, Commissioner Barker, Commissioner Feldblum, Commissioner Lipnic, General Counsel Lopez, District Director Kores.On behalf of Ken Salazar, the Secretary of the Department of the Interior, I thank you for providing me this opportunity to share comments to the EEOC regarding the future Strategic Enforcement Plan.
The Department of the Interior is America's principal conservation agency.Its mission is to protect America's natural resources and heritage, to honor cultural and tribal communities, and supply the energy to power the future.The Department of Interior offers unparalleled recreational opportunities, protects the Nation's monuments and priceless landscapes, conserves wildlife and fisheries, protects and interprets cultural collections that tell our Nation's history, and manages resources that help to fulfill the responsibilities for American Indians, Alaska Natives and our affiliated island communities.
Our programs touch the lives of most Americans, from the people of Yosemite National Park and the Arctic National Wildlife Refuge to the Canyons of the Ancients National Monument, American Samoa, Guam, and the Virgin Islands.We have approximately 72,000 full time employees, and 200,000 volunteers.I'd like to point out the terrible wild fires that just struck through California and Colorado, the Department of Interior was there.We were helping to fight those fires.
We at DOI are looking for opportunities to build on our collaboration with EEOC.Our priorities at DOI for the next three years include continuing to build a diverse work force at DOI to make DOI a best place to work.Training our managers on employee rights and responsibilities to continue to reduce our complaints of reprisal, cultivate a culture that encourages collaboration, flexibility and fairness to enable employees to contribute to their full potential and retention, and continue to work with our Diversity Change Agent Program to build on the challenge of delivering the Inclusive Workplace vision.
What could EEOC be doing better?I have reviewed the comments and suggestions of the other panel members and in general support their positions.But in addition to the comments that they have provided, I'd like to add a few additional suggestions.There are two different enforcement mechanisms available to the EEOC in the federal sector, and they have not been fully effective.
The adjudication of claims brought by federal employees does not deter discrimination nor does the cumbersome process deter complainants from filing, or refiling and refiling.An improved case management approach would help to better enforce the findings of discrimination and final agency decisions.Administrative Judge's should be assigned to specific agencies.
As an aside here, working the Bureau of Indian Affairs takes special knowledge.And every time we think we help an Administrative Judge to understand working with the Bureau of Indian Affairs, we have to help train him all over again.So that's just one point.This would ensure consistency in the results across each agency.This will allow for better trend analysis.
The AJ's role would expand to include an outreach and education piece with the agency under their jurisdiction. We as an agency know and collect data, lots of data.We can run reports to see where the hot spots are located, but no one necessarily outside of our organization sees that information.The EEOC could track the hot spots with the data it has, but does the current EEOC technology allow for such queries? Are you able to see the same kind of information we're looking at?
If the AJ could focus on a smaller case load of specific agencies, specific bureaus, we could all work collaboratively to come up with a solution rather than keep having some of this same boiler plate training.The AJ would become more involved at the agency level rather than being so removed from the process after the appeals.
The second enforcement mechanism is the oversight authority regarding the federal agencies' equal opportunity and affirmative action plans.There just isn't enough accountability in these plans.Who is really monitoring the implementation and completion of the plans?EEOC monitors if the requirement in the plan was met.We send you a list and we check our box that we did it.And then, you know, that's kind of the monitoring that goes on.
This is an opportunity to show how the diversity movement can go hand in hand with the action plans.We suggest that EEOC limit agencies to three to five achievable goals and objectives in collaboration with an EEOC specialist who is assigned to work with us, our field person, and a review of the historical data.Then the agency can actually work to make improvements in those specific areas, and have a more focused results driven approach.
Additionally, we'd like to see you be more aggressive in your enforcement roles. Specifically, 29 CFR 1614.102 should be enforced by continuing to do staff assistance until full compliance is achieved.Are there laws or regulations that need to be eliminated or created?
CHAIR BERRIEN:Excuse me Ms. Eller, can you wrap up.
MS. ELLER:Okay.I'm sorry.I actually went through my time.Okay.Madam Chair thank you for an opportunity to assist the EEOC in working on this plan and its implementation.
CHAIR BERRIEN:And if there's anything you didn't get to cover, I hope we'll get to it in the open session.Thank you.Now we'll turn to Leonard Hirsch of Federal Globe.
MR. HIRSCH:Thank you.Good afternoon Madam Chair, Commissioners, Colleagues.I'm honored to be on this panel. I'm Leonard Hirsch.I come here due to my work in Federal GLOBE: Lesbian, Gay, Transgender, Bisexual Employees of the federal government.I'm probably the outsider on this panel because I don't have the depth of experience and knowledge that my colleagues have on the rules and procedures of the EEOC. I am the outsider, because were I the victim of discrimination, most likely, the EEOC would not take my case.
MR. HIRSCH:Thank you.Sexual orientation issues are currently the locus of a lot of social discourse, learning and change, and thank you for the change, in all spheres of our lives.The love that dare not say its name is now loquacious.Whether it be a TV anchor or a hip hop singer coming out of the closet, or unfortunately, gay bashing and violence against our transgender brothers and sisters, increasingly we are discussing this set of personal issues.And it is a complex of issues, not a single one.
Dealing with sexual orientation, gender identity, and gender expression in the workplace, is fraught.Does sexual orientation belong in the workplace?Many would say no, but in reality, these issues have always have been part of the workplace.We are now dealing with them in the broader and fuller range.We are also hearing from people who were silenced and marginalized in the past.
Every time there is a wedding shower at work, sexual orientation is there.Every time there are discussions about weekend and vacation plans with family, sexual orientation is there.Many of our likes and dislikes reflect sexual orientation.Historically, dress codes enforced a very narrow range of gender identity and expression, and informal codes still do.
Dealing with sexual orientation is necessary and needed in the federal workforce. Discussing it is necessary and needed.Keeping up with society and ensuring the full range of our rights as citizens demands it.The issues of harassment and discrimination based on sexual orientation, gender identity and gender expression are similar to those involving race, age or gender.However, the rules for dealing with this harassment or discrimination might be different.The right to employment free of harassment on sexual orientation does not fully exist.When Congress passed the authorizing laws, sexual orientation was not enshrined as a protected class, as we all know.Protections from discrimination based on gender identity and expression are only being addressed now through the extension of case law on discrimination based on sex.
This is an important advancement of the last few years and we thank the EEOC and its Commissioners and staff for working as hard as you have done to help protect, to assist transgender people and those who do not fit traditional gender expression.However, this set of factors, some cases not fully protected by EEOC rules, others in a state of flux, has created a situation where much more time and attention needs to be placed on training and outreach.
We were happy to see that the EEOC Strategic Plan for Fiscal Years 2012‑2016 had a full objective on Education and Outreach.And as good bureaucrats, which we hopefully are, when given a Strategic Plan we have three operational requests for action for you.
First, given that remedies for discrimination based on sexual orientation is not fully within the EEOC mandate; we request that you formally engage the Office of the Special Counsel and the Merit Systems Protection Board, which have parts and purview of these cases, and develop joint materials and programs under your Outcome Goal 2B, which had for materials there.
Over the 20 plus years that Federal GLOBE has been working within the federal workforce, we have noticed that training on sexual orientation, gender identity, and gender expression issues have changed a lot for the better.But they're still not good enough or consistent.Many trainers are not comfortable with the issues, not conversant beyond the book learning, and skim past the issues with very formulaic articulations.Many EEO offices around the government are not comfortable with these issues, and rather transfer them to human resources offices, frequently due to the lack of mandate.
Getting that together will be very important.So training the trainers is very important.So in the second area, in all areas of discrimination and harassment, we have found training can be effective.Not only when the facts and procedures are put forward, but when they address the cultural and the communication issues.We have found that for sexual orientation issues, there is frequently a negative cycle that starts with ignorance, rather than animus, and that it's at the heart of what becomes a hostile situation.We encourage communications that can quickly eliminate this set of cases.And this can be a manifold part of the Plan.
Finally, we know that there are shades of grey in all areas of discrimination. Getting good data is vitally important.So finally, three, working with OPM to analyze the data that they are now asking about sexual orientation to find those areas in the government where there are signs of discrimination could be a very important element to the plan.And I hope to be able to come back to this.Thank you very much for the time.
CHAIR BERRIEN:Thank you.And now we'll turn to Jason Zuckerman of the Office of Special Counsel.Thank you.
MR. ZUCKERMAN:Good afternoon Madam Chair and to all of the Commissioners.Thank you very much for having me this afternoon.My name is Jason Zuckerman and I am the Senior Legal Advisor to the Special Counsel at the U.S. Office of Special Counsel.
OSC is an independent investigative and prosecutorial agency whose primary mission is to safeguard the merit system by protecting employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing.Our agency also operates as a secure channel for employees to blow the whistle.We handle the enforcement of the Hatch Act.And we also investigate and enforce the civilian employment and re-employment rates of military service members under the USERRA.
OSC faces significant resource challenges.Overall, the agency's caseload is growing more than four times than its annual budget. During the past three years alone, OSC's case docket has grown 29% while its annual budget edged up just marginally.Given the challenging environment, OSC recognizes that it must prioritize clear strategic goals and objectives that are ambitious yet realistic, and work creatively and efficiently toward achieving them.
My remarks today will briefly address the trends that we are seeing in prohibited personnel practices and what we're doing to apply our very limited resources to deal with those issues.When we look at the prohibited personnel practice complaints being brought to our office what we see is that claims of retaliation comprise the majority of those complaints.And to put this all into context, there are 12 prohibited personnel practices at 2302(b), and those are in my written remarks.
More than half of the prohibited personnel practice complaints brought at the OSC within recent years alleged some type of reprisal.This year alone, that will be 75 percent.And recently the U.S. Merit Systems Protection Board performed a survey of 72,000 employees.And the results of that survey really underscore the importance of the OSC emphasizing its obligation to combat reprisal.
In a report issued in November, 2011 (available on the website of the MSPB, it's called "Blowing the Whistle: Barriers to Employees, Making Disclosures"), the MSPB concluded that one-third of individuals who felt that they had been identified as a source of a report of wrong doing perceived either an act of reprisal or a threat of reprisal.The response to the exact same survey performed in 1992 was the same, i.e., there has been no decline.
But in a survey of how employees perceive all of the prohibited personnel practices, there actually was a significant decline in the other prohibited personnel practices over an 18 year period.They also concluded that about 18 percent of the respondents were aware of a serious violation of law or regulation within the prior 12 month period.And 35 percent of the employees who were part of the survey did not report wrongdoing that they were aware of.
And one of the other reasons we've really made it a priority to emphasize claims of retaliation is the impact, i.e., there can be a chilling effect when there's an act of retaliation, in that it'll impact not only the individual who blew the whistle, but it is also very likely to deter other employees from reporting wrongdoing.So then the issue becomes, what are we doing about this?
And I want to go through very quickly a few of the things we've done to try to combat reprisal.One, there's been an increased use of our stay authority.That is, if we have reasonable grounds to believe that a proposed action is the result of a prohibited personnel practice, we can seek a stay of that action, either from the agency, or if we have to, we can go to the MSPB and get an order to stay that action. There's been a significant increase in our use of our stay authority over the past year.
Two, last September, we launched the Retaliation Pilot Project, which has increased agency resources for the investigation and prosecution of reprisal cases.That has already shown concrete results.During the period of mid‑June 2010‑2011, OSC nearly doubled the total number of corrective actions that it was able to obtain for employees.Two, we've significantly expanded our ADR program.This year we're on track to quadruple from the prior FY the number of claims that have been successfully mediated.We've also significantly increased our outreach efforts. And we try to do that in a way that reflects what we see in our prohibited personnel practice complaints.So that if we see at a certain agency a lot of prohibited personnel practice complaints that might indicate a pattern or practice, we work with that agency to perform outreach to go after that issue.
One other thing that we've done is to significantly increase the transparency about the work we do.And that's really, really important, because it also will make clear to supervisors and to managers throughout the Government that they can be held accountable when they engage in a prohibited personnel practice.That is --
CHAIR BERRIEN:Excuse me Mr. Zuckerman --
MR. ZUCKERMAN:Oh, sure.
CHAIR BERRIEN:If you could wrap up.
MR. ZUCKERMAN:When we get an agency to take disciplinary action against a supervisor who has been involved in a prohibited personnel practice, we make sure to be very transparent of that.So to conclude, we applaud your efforts to solicit input from a wide variety of stakeholders.And we hope to work with the EEOC to achieve the intent of Merit System Principle Number two, which is to ensure that agencies afford all applicants and employees fair and equitable treatment in all aspects of personnel management.
CHAIR BERRIEN:Thank you.Thank you to the entire panel.And we'll now open the floor for questions, beginning with Commissioner Barker.
COMMISSIONER BARKER:I don't have any questions other than I really appreciated all of your comments.And again, I thank everybody for taking the time to draft very well written comments, and presenting today.Thank you.
CHAIR BERRIEN:Thank you.Commissioner Feldblum.
COMMISSIONER FELDBLUM:Okay.I've got two questions and one sort of general comment.First question is, do you believe we could set out rules for prohibiting conflict of interest in federal sector investigations in our strategic enforcement plan?Or would that require a separate guidance?Or would it even require a change in the 1614 regulations? I'm pleased to hear what you might have to say right now.I'd be even more pleased if you look at Page 16 of the Strategic Plan, which says what we're going to do in the Strategic Enforcement Plan.And if you can make a case as to how that fits in there, I personally would love to see it.
That leads to my second thing, which is the comment.I could not echo more that there's no need for any more reports.It's only need for some action.If a task force was set up with a six month deadline to do things, I publicly volunteer right now to be on it.But assuming not, this is both a comment and request, which is whether we will have your active engagement, everyone around this table, on the following two things:
Number one, by September 30th, 2013, based on our Strategic Plan we will have developed categories for federal sector cases; we will have ensured appropriate guidance about how to have those categorizations; we will have done staff training; and we will have developed piloted and implemented new processes and technology for that categorization.That's what we have committed to ourselves in this strategic plan.I would love to hear, maybe even in writing, how you hope to be involved with us in figuring that out.Based on some of your comments already here today, that's on Pages 17 to 18 of the report.
And then second, also by the end of 2013, we have committed to create and implement a data system of complaint, hearing and statistical employee data, right.The MD 715, the 462s.In order to establish priorities in the federal sector.So the idea of how do we pick those two to three areas; we have committed by the end of 2013 to try to create that system and then move on to creating various on site program evaluations. And then review the compliance plans to determine if they have been implemented.And that's Pages 19 to 20.Again, I'd love to see how folks plan to be involved with us in that.
My last thing, which does apply absolutely to the Strategic Enforcement Plan, so I would love to hear about it, is a possible reorganization within the EEOC to better implement our federal sector responsibilities.It's been mentioned that it's divided between two offices at the moment.That is absolutely a -- should be a subject of the Strategic Enforcement Plan, as should the question of how we integrate our work in the federal sector with our work in the private sector.
As I mentioned before, what's different about the Strategic Enforcement Plan from the previous National Enforcement Plan is, it's not only defining issues of priority, which again I'd love to hear about other issues of priority inside the federal government, but also requires integration between our different divisions.And so in what way do you think that integration can work?
The Macy decision is a good example of gender identity being covered under Title VII, not just under the federal sector but for private sector. The Veretto and Costello cases dealing with the fact that sexual orientation is covered through gender stereotyping applies also, federal sector, private sector.The question is, what more of that can we do?Thank you Madam Chair.
CHAIR BERRIEN:Thank you.Commissioner Lipnic.
COMMISSIONER LIPNIC:Is that working?No, is that turned on?Oh, wait a second.
CHAIR BERRIEN:I think the batteries are beginning to --
COMMISSIONER LIPNIC:Oh, is that right?Okay.There we go.Thank you Madam Chair.Just a couple of questions for a number of people.Secretary Leonard thank you for being here.You mentioned, and this is a theme that a number of you have mentioned, about the federal employees do not trust the civil rights apparatus of their agencies.But it sounds like you've had some measured success at the Department of Agriculture.And when you talked about the number of people who will now get a final agency decision, I gather in lieu of asking for a hearing.Is that what --
MR. LEONARD:That's correct.
COMMISSIONER LIPNIC:Okay.So I'd be interested in just sort of what you think, how you were able to achieve that.And then also you mentioned that you thought there should be training for GS-11s, 13s, 14s, 15s, and SES.So if you want to expand on that, I'd be interested in that.
For Ms. Randle and Mr. Hadley, in particular the question about the involvement of agency counsel, which is something that we hear about all the time.And this is somewhat of a follow-up to what Commissioner Feldblum was asking.But I gather you're suggesting that we would have the authority to dictate to other federal agencies, you know, that agency counsel, you cannot be involved in the EEO process.
I was struck by though, Mr. Hadley, your comment that, well, you know, the agency counsels are working on position statements from the managers.So maybe I'm misunderstanding that.I don't think you can quite have it both ways.I mean, you can either have the agency counsel hands off with the EEOC investigator, but their role is to represent management.So I don't quite see how you then say, well they cannot be representing their particular managers.
And the ultimate question to both of you is whether one you think we somehow have the authority to dictate that, or two what I would think would be the case, is that we would need an opinion by the Justice Department and the Office of Legal Counsel on that particular issue.And last question for Ms. Eller, you talked about, you know, all the data that you see.And said, gee, do we at the EEOC see that data also.But I wasn't sure to what end, you know.So those are my multiple questions.
CHAIR BERRIEN:Thank you Commissioner.General Counsel Lopez.
GENERAL COUNSEL LOPEZ:Thank you all.And thank you all for your public service.I think it's real important that federal employees be recognized for the work that they do, particularly in this day and age.I just have a couple of questions.
Mr. Zuckerman, we talked a little bit about some potential areas of collaboration between our agencies.And I want to know if you could expand on that a little bit.And Mr. Hirsch, in terms of issues involving the LGBT community, I was wondering if you had ideas on common areas between the federal sector and the private sector where we might explore undeveloped areas of the law?
I know there's been a tremendous amount of wonderful thinking in the civil rights community with respect to LGBT communities.I do, you know, primarily private enforcement.I know you've thought about it.And I wonder if you have any counsel for it.
CHAIR BERRIEN:Thank you.Director Kores.
DIRECTOR KORES:Very loud.
CHAIR BERRIEN:I think that may be from the phone.Mr. Crouch, is you could possibly mute the phone.
MR. CROUCH:Mute the phone?
DIRECTOR KORES:Thank you all for being here.Very enlightening panel.I have one question, is on the role of mediation in the federal sector.A couple of you mentioned it.But I'd like to know if there's room for expansion, and how that might happen?And specifically, Ms. Randle, you mentioned the use of settlement professionals.I'd like to have some more information about that, how that would work, and if it's been effective in your experience?
The second question has to do with training.Several of you mentioned training. What is the role of the EEOC in the training that we're talking about?And I think we're talking about maybe a couple of different types of training.Ms. Randle talked about training for activists and employees that had been provided, maybe in coordination with the agency and the union.And then we talked about training.I think Dr. Leonard first mentioned training for first level managers, and up to the top level.So what is the role of the EEOC in that training function?Is it our responsibility?Is it the agency's responsibility?Can we do it together?
CHAIR BERRIEN:Thank you.And then the last thing I'd like to put on the table.Across sectors retaliation is, or generally appears as the top basis for charges that we receive.And I think Mr. Zuckerman certainly raised the issue in relation to OSC defining reprisal and retaliation as one of their priorities.So I would be interested in this panel's view on whether for federal sector work specifically, but presumably the same, certainly the same data is true, appears in the private sector.Whether retaliation ought to be a focus of our efforts.And that could be investigative or in litigation.But it can also be, or in this case in our hearings process.But it could also be in public education and outreach.
And I'd be particularly interested in hearing if you have thoughts about how we might do more, and what more we might do to raise awareness across the Government of the anti-retaliation mandate of the federal laws that we enforce?And secondly, I would like to hear beyond retaliation if there are other issues or areas that you believe we ought to consider as priorities in our federal sector enforcement effort.Particularly if those areas are things that you think the data that you've seen at the agency level, for those of you who are here from an agency or department, is supported.
And for those of you who represent groups such as those in the NCEPS, or GLOBE, or your group, Mr. Banjo,if you can share with us, if there are specific concerns of discrimination, forms of discrimination that you believe the Commission needs to be particularly sensitive to in our federal sector program and enforcement effort, and prioritized.Thank you.
And we can go in the same order.But I will ask this.We ran out of time in our last session.If those of you who have been asked specific questions, or questions were directed to you specifically, if you could answer those first.And then if time permits we'll hear your views about other areas.
MR. LEONARD:Thank you very much. You know, regarding, you know, I mentioned at the outset the discussion about having civil rights people work in civil rights, and not HR/ER, because conventional wisdom will tell you if you haven't worked in it, if you have more findings of discrimination in your agency what people will tell you is that more people will file complaints.It's not necessarily the truth.
I think everyone at this table knows that this is a last line of defense for the individuals.And the last thing they want to do is actually file complaints.So the irony is -- what I noticed that when we --and our staff noticed --when we began to train people on EEO and their rights and privileges, what we needed to do is also train supervisors at the same time on how to supervise, manage and lead at the same time, the 11, 13, 15, SES.
And the reason is -- it's a counterbalance.Too often at USDA, because we deal with agriculture, we have a lot of veterinarians and individuals who are subject matter experts, but have never led over five or ten, let alone 15 people before.So it's vitally important as you provide this sort of training to the individual, to provide that leadership sort of training to counterbalance. And that's one of the things --that's why I'm not directly focused on EEO training per se, but also the supervisory, management, and leadership trainings.And I think it's going to be very important in the coming four years, because that leader's going to have to lead with less money than he's ever had before.And he's going to have to still increase morale and such.I think that's vitally important.Going to the success or OSCR, we did all of this.At the same time, again we have 105,000 employees.We also had four class action suits on our program side.We had Pigford, Keepseagle, and the Hispanic Women's Claims Process.So we had to really look at both things.So at the same time that we were providing civil rights training, we were providing training to our employees in the field, in those 2100 counties, because we needed to do a better job of working on customer service for our customers, for our customers.And what we did is double back with that and do it on the EEO side as well.So what I'm -- and I have my list here.
In the five years previous to this administration coming on board USDA had --Well it's easy to say, we had four findings, threefindings, and then seven findings in the previous years.The last three years we've had 13, 22 and 27.And we'll probably be a little less than 20 this year.We've also increased our processing time of EEO complaints from about three to four years, Kirk, and Kirk Perry's here, and he's Chief of our Employment Adjudication Division, to around, to under two years.
What I'm trying to work on in the next two years is, not only the processing in our accept/dismiss.We have a bifurcated system that we're trying to help on investigations, because our investigation system does go back to the agency.What we're trying to do is place that within our baileywick also, in the same way the program side is.And the program side, and we're using that to model.In our program side we intake the case, we do the investigation on site, and we also write the FAD for it.
This time what we do, what our current structure is, we do the accept/dismiss, we send it back to the agency, it comes back to us, and then we write the FAD in Kirk's shop.Our secretaries decided we want a blueprint for strength.It didn't make sense.We haven't allowed FADs on our program side to toll.With that confidence on that side, that's the reason I wanted to talk about his trust.Because we haven't allowed them to toll in the last two and a half years.He wants the investigations to come to us.So we won't have to have that issue of investigations being influenced by the agencies anymore.Because that certainly has been a concern.We've taken that upon ourselves.We haven't asked the EEOC to provide a rule or reg, or even guidance in that matter.It's the logical thing to do.
MS. RANDLE:All right.Yes, thank you for the questions that you posed.I'm going to try and handle most of them.A couple of things on the legal position as to whether or not you have authority to dictate or mandate or suggest to agencies how to handle EEO cases and the involvement of the Agency Counsel.
Currently 29 CFR 1614, 108(b) requires that the agencies prepare an impartial and appropriate factual record.The record cannot be impartial if what you have, and perhaps not even factual, if what you have are agency counsels writing answers to interrogatory or canned questions that are presented by the investigator.Because when the investigator actually gets to the complainant, they'll just forward the questions to the complainant.There's no help on that end.
However, when they ask the questions of the agency it literally goes from the manager to the hands of the attorneys to write and to assist in the writing.That's not an impartial, that is a defensive mechanism that at this point in time, especially at the early stage of the investigator's stage, has become defensive.And so now Agency Counsel is taking a position.
I actually went to a hearing where I was -- I recognized the memo that the manager was relying on was in fact counsel's memo.And counsel had written why it is that there was no discrimination and why it is that they could do exactly what they were doing.So I was defending not the manager, whether he discriminated, I was defending counsel's position and opinion on it.Fortunately, we won that case.So I do believe that you have the authority.You also have MD 715 and MD 110.MD 715 I believe is the mechanism to involve employees and labor organizations, and it's not been used.I'm really -- when I heard the comments I was -- I heard how we should train managers, how we should train even those who are 11s and 12s.We represent members that are at two and three, and four.And so the supervisor's at seven, okay.I believe there should be training.I believe that the training that's being offered on line to meet the No Fear Act, doesn't get it.
It's maybe good refresher for people who are actually know about it.But when it comes time to filing a complaint, those complainants are lost.They don't remember.And the manager, all he knows is he's got a complaint of discrimination.And guess what, it's now you against me.And the retaliation piece as you said, I think seriously, we tell our attorneys.Our attorney says, if we don't handle the first case, we'll handle the second case.Because we'll win the retaliation case.The first case may have no merit.But we'll win the retaliation case, because that's what's going to happen.They're going to have a reaction that's going to be personal as opposed to instructive, or even somehow educational, and they're going to defend.And it'll be the employee against the management team.And most people do not win.Because you have your attorneys and you have your counselors, and you have your EEO and you have your HR, and you have your LR.So they're not going to win.So I think that retaliation is so real in the federal government that many people who come to us just simply say, well I just give up.Maybe I should just give up, which of course that is not what I would counsel them to do.
In terms of the mediation piece, I believe I've had some judges who have tried to mediate.I've had some settlement judges.And I've had an individual in the 12th region I think, it's California, a fabulous settlement officer from New York.So I have to say, yay for New York.And he educated my complainant to such a great degree, and she was an educated person anyway, to such a great degree about her burden, and what managers are fighting to hold on to.And that is for the most part credibility, that she actually was in a position to want a compromise.
Now the question was how much from her vantage point.And the agency was from the point of view, where the Agency Counsel didn't even agree with what the agency had done.And you could see it in the negotiations.So the Agency Counsel let that settlement judge talk to her RMOs, so as to convince those RMOs what you could potentially see down the line.So it's a little bit more than the mediation.I don't believe -- And I've had mediators who just simply want you to start from one as opposed to five,because we're right in the midst of the case. They are not, and they want to educate you on the mediation process.Some people take that as very offensive, and they feel that they're being arrogant, and therefore, there's a complete turnoff.So it does depend on how you do it.
So having a cadre of people who in EEOC know how to do that would be invaluable. Because you don't have the complainant's attorney, you don't have Agency Counsel.You have a third party who is a trained workforce to handle those type of issues.And they can look to, because that's they're business.That will be the business of the day.
Age discrimination I think is something that we haven't talked about.And in the area you said what we could do.I know we tried to clarify the, you know, age discrimination criteria for the private sector.We've got, as everyone knows as I look around the table, an aging workforce as well as leaders included.But that's so real, okay.And especially when you say you have to do more with less.Not only do you have to do more with less, you have to do more with older people.And it takes us a little bit more time than the younger people.
But we shouldn't lose the knowledge and expertise, and the experience those individuals have had, and just bring in someone -- and I hate to say it, a new person just right out of school.Because that starts the discrimination right there.It's that, no, I recognize you were good and before. But now I want to give somebody else a chance.Move over.And potentially force you out.
So we deal with a lot of age discrimination cases.We know the law's very limited in that, as well as the remedies in the area, but we do it because we know it's a real issue for employees.So I would again encourage not just training of managers. It takes two to tangle.We have to train employees.And we have to have the people who are -- and I dare say have the interest of those employees at heart.And it's usually the labor organization.Or it's usually an association that they belong to.So it's constituency groups.It's nothing wrong with that.We have premier training in EEO.Again, the only federal agency that does this. And we have.We actually went to your Excel conference a couple of times.And we've done some training with some agencies.And when we train our activists, they truly are able to train others.So as you reach out in your agencies to try and educate the managers, bring the employee voice in there.That's all we say.
CHAIR BERRIEN:Thank you.Just a quick time check.We have about tenminutes left for this session.So I'm going to ask if we can cover the areas that any specific question were directed to first.And then whatever time is remaining.I know Mr. Crouch is on the phone.And sometimes it can be difficult to jump in when you're out of the room.But I have not forgotten you.And if you do want to weigh in, please just indicate. Thank you.
MR. CROUCH:Well I want to only make a couple of comments.First of all, reprisal actions are rampant.Why are they rampant?Because managers and supervisors have nothing to fear.Even when they're found guilty of discrimination.The question is, what happens?Nothing.
I have worked in an agency where our managers have been found guilty of discrimination on multiple occasions.They're still allowed to work as a manager, and nothing happens to them.That is the point that something needs to be done.What, I don't know.But something needs to be done to correct that.And I don't think EEOC can do that.The agencies must do it.I know you request the agencies take the action and report back to you.
The other statement I wanted to make is that the General Counsel involvement, at the time a complaint goes to EEOC is not objectionable.But when the General Counsel gets involved the day after an informal complaint is filed, and begins to advise and assist the manager, the General Counsel's involvement at that point is improper.Primarily because the Counsel's job is to protect the agency, not that manager.And many times their focus is on protecting that manager, not the agency.Thank you.
CHAIR BERRIEN:Thank you.Mr. Hirsch.
MR. HIRSCH:Thank you.I'll first say that, you know, Strategic Objective 2 is: Prevent employment discrimination through education and outreach.So there's a big chunk of your plan for this.And that's where we were focusing.And I think we can work together.And I like the idea of, you know, getting together with the unions, with the other affinity groups, with the regular line officers, and figure out the right way to do it.
I agree completely, the earlier we get people and their management, the better he or she will be able to handle it.And part of this is getting beyond just thou shalt not, and try to work through why.Why does this help the workplace and workplace dynamics.And I think though there was a lot in your question about common areas between federal and private sector, that is one of the places where I think we can learn a lot, not only from the law but from the practices that are being used to make certain that workforces are used and deployed effectively.
And part of that is making certain that everyone is treated equally and everyone is respected.And getting to that understanding of the need for that is a major part I think of EEOC's work.Because if we can do that, you'll have less work on the other side, which is really what you want.So we're here to work with you on that.And we can follow up more on the private sector.
CHAIR BERRIEN:Thank you.Mr. Zuckerman.
MR. ZUCKERMAN:Yes.I'll respond really quickly to the question that was asked by Mr. Lopez.There are really two ways in which I think OSC can partner with the EEOC.One is that under 5 USC 1215 (a)(1), OSC can seek disciplinary action against an employee who has committed a prohibited personnel practice.So it's my understanding that years ago there was an MOU between the EEOC and the OSC.As far as I'm aware it's not in place now.And that's something that we might think about possibly reviving.That is where an EEOC AJ has concluded that there has been a violation, that could be referred to our office.And we could go to an agency.If we have to we might be able to go to the MSPB to seek an order.
The other way is really outreach.And there's a lot within outreach.I think one of the things that we have to emphasize in training is to have a healthy respect for the process.That is, if an employee's brought an IG complaint and gone to OSC, or they've gone to an agency EEO program, it's very important that all supervisors and managers understand how important it is to protect employees' rights to exercise a complaint appeal or grievance right.
One other area within outreach, and I think this would go to what Mr. Hirsch said is, in certain areas an employee might have a few options.There might be options of the EEO, there might be options that are OSC or MSPB.That can get very confusing.And while I was a plaintiff's side employment lawyer for a long time, and I don't want to take any work away from other plaintiff side employment lawyers, I don't think that an employee should have to get a lawyer to understand those options.
I think there's a lot that EEOC could do with MSPB, with OSC, to make it very clear, quite possibly in one place on the internet, what those options are.And you really don't have that.You'd have to go through all of these websites, and go through what can really be very, very confusing.So that's an area where I think we can all work together.
CHAIR BERRIEN:Thank you.Ms. Eller.
MS. ELLER:Yes.In response to your question about hot spots, one of the things that we were looking at, we look at trends.We look at the number of times the manager's been in front of a, had disciplinary actions, had discriminations in front of him. Our liaison, who works with us from EEOC, possibly if we could be tighter in how we're working together at those hot spots. Recommendations for training, recommendations for anything that she or he might have in how we're doing business together.
And I'm not necessarily sure that all the information we have, that you all are also looking at too.So it's a way that the technologies are working together that we're doing a better job together in how we're recommending training, how we're recommending how we're doing reviews.And how possibly the judges understand how Interior works, how we work as an agency.So that's what we were looking at, is to be able to share that information.
I'm in complete agreement over here about a way to be able to better explain to employees what their rights and responsibilities are.We train all the time on it.And I'm going to turn it over to Mr. Hadley.
MR. HADLEY:Thank you.
CHAIR BERRIEN:Thank you.
MR. HADLEY:Commissioner Feldblum, first of all to answer one of your questions about the commitment of the people around these tables.One of the things I did in preparing for this hearing is to look at the testimony I gave six years ago.I don't know that I got another six years left, but you have my commitment to try to work with you folks as long as you're doing something.
The statute.I know you're a big believer in statute.I don't know the rest of the Commissioners as I've had a chance to talk to you more.Go right to your statute, 2000e-16.You have -- Congress gave you the authority to make rules, regulations, orders and instructions.That's a very broad statutory mandate.
COMMISSIONER FELDBLUM:Let me clarify.I have no doubt, and I'm happy to --
MR. HADLEY:That's --
COMMISSIONER FELDBLUM:Oops.I have no doubt, and I'm happy to talk to Commissioner Lipnic about that.I have no doubt that we have authority to tell the agencies about the role of the General Counsel.
COMMISSIONER FELDBLUM:My question in terms of timing is, we will be voting on a Strategic Enforcement Plan by the end of September, this September.My question is whether being able to put that point, is that something that is appropriate for our Strategic Enforcement Plan as we described what that plan is supposed to do in our Strategic Plan?Or is it something that we need to have in some separate guidance?
MR. HADLEY:I think it's separate guidance under Management Directive 110.And I would say, you have charged the agency head with conducting an impartial investigation.To the extent that the agency is entitled to counsel in the investigative stage, the interest of the agency head is not in defending the agency; it is seeing to it that there is a full and fair investigation, not to defend the agency.There is no role for agency counsel, other than perhaps to advise in settlement discussions until there is a request for hearing.At that point it becomes an adversarial proceeding and the agency's head's interests change.It's that simple.It ain't rocket surgery.
CHAIR BERRIEN:Thank you.Mr. Banjo.
MR. BANJO:I would just want to add to that, going back to the same question -- I know that your concern about a time constraint.If you have to wait and use the empty, you know, one take to do that.But I was wondering if doing it with the SEP would not strengthen that plan.Kind of bring it right now to strengthen what you already have there.And then if there a need for an additional memorandum or, you know, we can do that later.So that would be my position on that.
And then with reference to the role of the Commission with the training and that. Again, I believe that there are already tools that can allow the Commission to collaborate with agencies to make that happen.The elements of a model EEO program is already there.And, you know, each of the elements speak to certain things that should be taking place under there, which is either not currently happening or not enough of that has been done.
So again, this is not really looking at creating any additional tools or anything.But just making sure that again agencies adhere strictly to what they've already been asked to do.We're not asking agencies to do anything different, anything new. So again, that's, you know, my position. And of course I, you know, support other, you know, comments that's already been made.
CHAIR BERRIEN:Thank you to this entire panel.We are going to break for ten minutes.We'll reconvene at 3:20 p.m. promptly to begin our final panel.Thank you all very much.
(Whereupon, the above-entitled matter went off the record at 3:02 p.m. and resumed at 3:20 p.m.)
CHAIR BERRIEN:Okay, we're going to get our final panel started.We have some slight constraints so I'm going to just repeat for all to please observe the warning lights, yellow means one minute left, red, time is up and for the question and answer session, please, short questions, please remember that we need to preserve what time we have left for the discussion.I want to welcome and thank all of you; you are home but we nevertheless know and appreciate that your presence today is important just as with all of the people who we've heard from from outside the Agency. This is the panel that consists exclusively of EEOC employees that represent a number of different perspectives in helping to bring to bear some important information from the perspective of EEOC employees about the development of the Strategic Enforcement Plan. So I want to thank all of you of those who are local and those who have traveled to be here with us today, for being here and being a part of this process.
MS. WILSON:Excuse me, and before we begin, is there anyone here in need of sign language interpreter service?Okay, thank you. Madam Chair?
CHAIR BERRIEN:Thank you.I'm not used to so many breaks and returns so I do apologize for more than once neglecting to allow for that announcement, Bernadette.Thank you to all of the people here for the employee round table.We are going to hear in this order, from Gabrielle Martin, President of National Council EEOC Locals and here from the Denver Office of the EEOC.
Reuben Daniels, Director of the Charlotte District Office, here from Charlotte.William Cash, Director of the Little Rock Area Office, John Hendrickson, participating by VTC, our Regional Attorney from Chicago.Elizabeth Grossman, Regional Attorney from the New York District who is here in the capacity as former Chair of CASE, the Committee of Advisors for Systemic Enforcement.
Kathleen Mulligan, President of the EEOC's Administrative Judges Association, here from Los Angeles; and James Lee, Chair of the EEOC's SES Advisory Council and Deputy General Counsel of the EEOC.So in that order we're going to hear from you now.Thank you and we'll begin with Gabrielle Martin.
MS. MARTIN:Thank you Chair Berrien, Vice Chair Feldblum, Commissioners Lipnic and Barker, General Counsel Lopez, and Director Kores, I want to thank you for giving the Union the opportunity to present its views today on the Commission's priorities under the 2012 Strategic Plan.
EEOC has many programs which face unique challenges based on the type of the work and the limitations of the Agency's budget.Currently we're facing the largest workloads in our history and we're also enforcing the largest number of statutes in our history.But through it all our most important resource is our employees who perform the work.But right now employee morale is at an all time low, where employees are leaving for jobs with higher pay, better work conditions, and work processes that make sense for the work being done.And that doesn't help because EEOC requires a cadre of talented employees and we must do more to ensure that EEOC retains its employees and attracts new employees when it has resources.
Therefore, any plan adopted must be mindful of three key elements: employee morale, our use of technology, and key processes and systems.With respect to employee morale, that's how we get our work done.And without addressing these issues, any strategic plan is subject to some measure of failure.We need to change the focus from counting widgets and focus on a limited number of priorities.The sheer number of cases, combined with staff losses are contributing to high backlogs, lengthy processing times, and low morale.This serves neither the Agency nor the public.
We need to address questions surrounding the proper grades and classifications of our employees so that they don't leave.We need to distribute whatever the goals and strategic plan is very early, and we have to stop disguising our goals as production standards enforcing the fit.The Agency should examine staffing patterns and use more support staff.Professional staff have then, more time to devote to the priorities we determine we need to address.And one way to do that is to use specialty units such as systemic units to get the work done more efficiently and more effectively.And so I agree with all my predecessors who talked about finding ways to get the right fit of employees with the right kind of work.
Revamping intake will improve morale tremendously.The Union has given a one stop intake plan to try to better manage that work and focus enforcement resources on what we have said are strategic cases.The litigation program could use some revamping in that we need a better balance.This numbers driving us has led to lots of cases being filed, some of which don't pan out, which drain a lot of resources from the offices.Yes, we need a systemic program but it needs to be much more strategic.And we need to revamp the mediation program.This is a program that could do a lot for us but it competes with all kinds of things, outside contractors, whatever the litigation program needs or decides shouldn't be in there, whatever the age case goals are.All these things impact the ability of that program to be even more successful.And giving it success, I know that if it gets some attention it can be even more successful in helping us reach our goals.
And one other thing that I agree with that was said today is, we shouldn't just limit it to the front end of the process.And while that makes some sense before people are heavily invested, sometimes people only see the light after they have a certain amount of information.And that can be helpful in whatever goals the Agency sets. I also think we need to work on improving our technology. I know we have financial constraints but the more opportunities we have to introduce technologies that help us, whether it's intake or managing paper, the better the Agency will be.
Finally, there's a couple of key systems that need to be revamped.As I said, intake could be revamped; we could look at when we are designating "A" in systemiccases to get a more strategic group of cases that we're working on.We can work on our legal enforcement interaction.We are all in this together but some days it doesn't feel like it to a lot of employees.We need to look at these SEP meetings so that they are in fact collegial and constructive, and move the work along without taking up lots of time each week or each month doing repetitive reporting.And we need to look at our staffing patterns to ensure that we have the correct mix of paraprofessional staff, clericals, and professional staff for all units.I think these changes will help the Commission be effective in whatever strategic plan it comes up with.And again I thank you for allowing us to provide insight and comments.
CHAIR BERRIEN:Thank you.Director Daniels.
MR. DANIELS:Good afternoon, Chair Berrien, Commissioners, and General Counsel.Thank you for inviting me to testify as a part of this round table on what I consider to be a very important topic and responsibility for this Commission.My name is Reuben Daniels and I'm Director of the Charlotte Office.I welcome and support your leadership on the development of a new strategic enforcement plan that supports and implements critical components of the recently approved 2012-2016 Strategic Plan.I believe the Plan presents a challenge to the Agency and especially your field staff on the front lines to find ways to improve the efficiency and effectiveness of our programs in combating employment discrimination through strategic law enforcement, education, and outreach.
Let me begin with a plea from the field that this Plan not be simply a litany of aspirational goals that exhort staff to do more of everything with less resources and staff.Our staff have consistently responded to every challenge and goal set before them with unmatched energy and professionalism.They overcome impossible odds everyday to deliver quality services to the many customers both internally and externally who demand our attention to the issues that most directly impact them.I believe that we have, the primary reason for the extraordinary retention rate of staff at the EEOC is that our staff truly believe in the mission of the Agency and take great pride in the steps that we take every day to deliver and in stopping and remedying employment discrimination.
I won't read all of the statement that I previously submitted as part of this proceeding.But I do want to highlight a couple of points, just a few.The challenge for the Agency and its field offices will be consistent enforcement across the range of issues that continue to dominate our dockets. We have offices with as few as three or four investigators servicing hundreds of customers. Even our larger offices are stressed as they seek to deliver efficient pre-charged counseling, intake, ADR, investigations on the front end, and effective remedies and litigation on the back end.We believe that the identification of targeted priority issues and policies is only the first step recommended for this body.I would welcome an array of targeted priorities under which offices are allowed to identify issues and policies to which they may best contribute toward the Strategic Enforcement Plan.Directors need the opportunity to identify the most efficient utilization of resources for case management that support integration of investigations, conciliation, and litigation responsibilities.We also need clear direction on the implementation of PCHP as both an inventory and case management tool, and your support for the hard choices that must necessarily follow.
The Agency collects a wealth of information through its Information Management System or IMS that can be accessed and evaluated to aide in the identification of national and local priorities.We had several speakers today who have already alluded to our use of that information to target our enforcement actions.I'll support that because many of the resources that can assist in that currently exist, either within OFP or our ORIP, Office of Research Information Programs.These offices, in concert with OIT could be oriented to provide the field offices with the necessary analytics that aide in the crucial decisions on how limited resources are best deployed to greatest effect in reducing employment discriminations.
Directors and regional attorneys continue to work together and advancing to be on the same page with respect to enforcement and litigation priorities and the allocation of their limited resources to the priorities that are set forth for our various offices.
I would again urge that your field executives and managers be given discretion to make choices appropriate to their jurisdiction and their available resources.This will necessarily mean localized discretion and prioritization from the overarching Strategic Enforcement Plan.Regional and national collaboration among offices must be encouraged wherever possible.
Experience has shown that education and outreach are essential components of our law enforcement strategies.We believe that most businesses want to comply with federal anti-discrimination laws and we encourage this body to continue to address the needs of small businesses and their educational associations. We know that your plan is going to reflect some difficult choices.We welcome the opportunity to participate in that decision making process.And then of course you will have our full support in executing the Strategic Enforcement Plan.Thank you.
CHAIR BERRIEN:Thank you now we'll hear from Little Rock Office Director William Cash.
MR. CASH:Thank you, Chair Berrien, Commissioners, General Counsel Lopez, and District Director Kores, I want to thank you for allowing me to come before the panel today.Greetings from Little Rock.My office has the responsibility of conducting investigations of charges filed in the state of Arkansas.We're a component of the Memphis District.We have our District Office in Memphis and our District Director is sitting across from me, Ms. Kores, looking at me at an angle so I'll try to do well on this. We also have the northern 17 counties of Mississippi. Now our, and I want to make sure I identify our Regional Attorney Faye Williams.
Now in Little Rock we currently have ten investigators.We've lost investigators to retirements and to military deployments.We took a total of 1666 charges last year.We approach our workload through a very aggressive application and priority charge handling.It starts off with an extensive interview during the intake process. We have very early contact with our legal staff.Shortly after the charge is taken we meet with them to help prioritize the charges. An important aspect of what we do in our district is we have very frequent contact between our attorneys and the investigators working on the charges.Another important aspect of our office in Little Rock and our district is we have a very effective mediation program that helps us resolve a lot of charges early in the process.
Now the challenge as we go forward is how do we make the best use of our limited resources as we face this ever growing volume of charges?How do we take these priorities we're talking about that are developed in Washington and make them meaningful and useful in the rest of the country?Now these priorities that are established in broad strokes here, we must narrow and refine as we apply them to the demographics of our states. Now immigration issues for instance in our district are going to look very different than immigration issues in New York or in Chicago. Our district contains a number of rural counties.We're home of the largest retailer in the United States.We're home of the largest poultry producer in the United States. However, most of our employers spread throughout our state have 50 or fewer employees.So we have to have a flexible approach in terms of civil rights enforcement.
And there was some discussion recently about a New York Times article that talked about relocation of Marshallese, individuals from the Marshall Islands to Northwest Arkansas to work in the poultry industry.This is something that we were aware of.Our program analyst has done outreach for this group.I met with their counsel general and we've talked about the challenges faced in relocating from islands in the Pacific to the Ozarks.So there's things like that that we know about out in the field that we know that we need to put our resources to addressing.
Now the benefit as I see of having nationally set enforcement priorities, it could come in better coordination between Headquarters and the field offices.Recently we had a string of human trafficking charges. We didn't have a lot of experience in that area so we were able to reach out to some other offices and get some information and get some help.What I hope, as we have these priorities, I hope that there is an emphasis on making it easier for those of us out in the field to get a hold of resources and to be able to interact with people that have expertise in areas that we may not have expertise in.
But we think we have to take a reasoned, measured approach in prioritizing the processing of our charges.Regardless of what our priorities are, we're still going to have people that walk in the door that have been subjected to egregious racial harassment, sexual harassment, have lost their job because of pregnancy, because of their disability.We've had a lot of religion charges in Arkansas, people who've lost their job because the employer would not accommodate their sincerely held religious beliefs.Even though retaliation is the number one basis for charges around the country; in Arkansas the number one basis is still race.Forty-four percent of our charges last year were based on race.
Now one thing I want to point out is Arkansas, like Mississippi, there's no FEPA.There is no state civil rights agency. And there is not the type, we've talked about private attorneys general as we've gone through the day.And there's not a, we have some very fine lawyers in our district.But there is not a significant number of people with expertise in this area that practice in the private bar.Frequently we're it.They can't go down the street to the FEPA so we're who they need to come to.Now systemic cases are very important in furthering the Commission's mandate to eradicate employment discrimination.
We need to develop better methods to share information and resources between our offices.I know the Office of General Counsel has championed the concept of the National Law Firm.I would like to see something comparable on the enforcement side where we can help put investigators from around the country together to work on cases so we can have extensive broad-based investigations.
Now good investigations of individual cases, particularly in less populated areas, can have a major impact on furthering our mission.We have pursued cases that have sought relief for a single person or a couple of people that have obtained substantial relief and gained extensive favorable press coverage.Now as we adjust our enforcement priorities, there should be a symbiotic relationship between enforcement and legal.Strong thorough investigations produce effective litigation vehicles.An aggressive litigation program encourages employers to modify their employment practices and policies.A solid litigation program helps educate employers on the value of early resolution of charges during the charge process through negotiated settlement, mediation, and conciliation.
In conclusion, for a number of years I litigated cases in the Memphis District.We have dedicated investigators and attorneys who care very deeply about our mission.We were able to take some very good investigations and turn them into important litigation.Again, I would agree with what Ms. Martin said.Our most important resource is our people in that we have good people in our district doing quality work every day.Thank you.
CHAIR BERRIEN:Thank you very much.That background noise is apparently coming from the mics around the table.If everybody can please turn off your mic unless you're speaking, please be conscious of the papers.Hopefully that will bring down the noise.Thanks, and yes, when it's your, and please remember to turn it on though when it's your time to speak.
All right we should be joined hopefully right now by John Hendrickson who's been listening --
MR. HENDRICKSON:I'm here.
CHAIR BERRIEN:Thank you okay John, thank you from obviously by VTC from Chicago.Thank you.
MR. HENDRICKSON:Madam Chair, Commissioners, General Counsel, it's an honor for me to speak both to you and on behalf of the regional attorneys.What you do as a Commission in adopting a National Enforcement Plan will determine whether the EEOC continues to move in the direction of strategic and effective realization of the American dream of fair play on the job.It is not preordained that we will continue to move in that direction.We hear other voices with increasing volume saying that the EEOC is already too tough on discrimination and engages in too much litigation.And that the twin supports our litigation program, delegation of litigation authority at regional attorneys reported to the General Counsel should be rescinded.
We have been down that road before. About the only thing strategic or systemic about our operations back then were first, how effective our processes were in maintaining an enormous backlog of rapidly aging charges.And the second, embattling up litigation through the processes mandated for litigation authorization and regional attorney reporting.
We have become now a dramatically different and better Agency.And we are now taken seriously as a law enforcement Agency.We are taken seriously because our results compel it.Those results are the product first of a better paradigm for the development and conduct of litigation, a paradigm in which regional attorneys with boots on the ground, in their local jurisdictions, occupy a position of full legitimacy with direct reporting responsibilities to a Presidential Appointee, the General Counsel.Results of the product second, of the delegation of litigation authority which enables regional attorneys and the General Counsel to approve and conduct litigation.
This means that those with the most knowledge of potential litigation vehicles are making the decisions about whether or not to file suit and if suit is filed, how to conduct the litigation.It means that our litigation decisions are made with seriousness and professionalism and accountability, free of politics and with a full and realistic appreciation of all the nuances of the Agency's practice in every District Court in the United States.And this connection, you should be aware that in every case including those within the regional attorney's delegated authority, every case is presented through the statement of intent procedure to the Office of General Counsel and that a significant percentage of systemic cases are forwarded by the General Counsel to the Commission.The reality is that the delegation of litigation authority does not now mean and has never meant that lawsuits are being filed by anyone, anywhere without systematic and serious oversight in Headquarters and in the Office of General Counsel.Whatever you may have heard to the contrary, that's just not happening.
But what we regional attorneys worry about is returning to the days of the ubiquitous presentation memorandum, the days when the litigation authorization process was so burdensome and seemingly divorced from reality that it prejudiced our litigation program.The last thing the regional attorneys want is a return to those days.
Those who urge you to end delegation must make the case that our litigation program was better and stronger without it, and that we will all do better to return to those days.They will not say it but I will, that is a case which cannot be made.Although I mean it to be apparent in what I've already said, I want to say again and as plainly as I can, that what we are is a law enforcement agency.And that any strategic enforcement plan should state that litigation itself is the bedrock of Agency enforcement.
If there is no expectation of litigation in the wake of discrimination then discrimination shall surely flourish.But it need not.We carry the mandate of the American people to vindicate the public interest, to stop employment discrimination in its tracks.That ought to be our strategy.That ought to be our plan.Thank you.
CHAIR BERRIEN:Thank you now we'll turn to Elizabeth Grossman speaking for CASE.
MS. GROSSMAN:Chair Berrien, Commissioner Barker, Commissioner Feldblum, and Commissioner Lipnic, thank you for allowing me the opportunity to participate in this important hearing, in my capacity of former Chair of the Committee of Advisors for Systemic Enforcement, known as CASE. CASE was established as a result of a recommendation of the Systemic Task Force, which was adopted by the Commission in April 2006. The Systemic Task Force Report recommended that CASE be "responsible for helping to ensure that the agency combats systemic discrimination effectively" and stated that CASE should be a useful source of "assistance and support." The Task Force Report suggested CASE should focus on three primary areas: (1) reviewing the agency's systemic efforts, (2) serving as a resource on systemic matters, and (3) reporting to the Commission on the agency's systemic program. In adopting this recommendation,the Commission stated that CASE should assess the agency's overall effectiveness in combating systemic discrimination and serve as a resource on systemic matters.In January 2008, nine CASE members were appointed by the Office of Field Programs, the Office of General Counsel, and the Office of Information Research and Planning.Members were selected on the basis of their systemic enforcement experience and expertise and served two years, two year terms ending in the Spring of 2010.
I'm pleased to be here today to comment on CASE's past recommendations, and how the current CASE committee can be of assistance in implementing this strategic plan.During the two years that I was on CASE, CASE made many recommendations regarding the systemic program which have been implemented in various ways throughout the agency.Several of the recommendations are reflected in the strategic plan itself.I'd like to emphasize two CASE recommendations which are also captured by the strategic plan and which I now believe will be given appropriate attention through the strategic plan.First CASE recommended a greater degree of assistance by Headquarters Offices in facilitating coordination and communication among field offices.While there have been definite improvements in coordinating and consolidating systemic investigations since 2006, there is still no consistent effort to investigate company-wide policies and to obtain relief for all affected victims in these cases.
CASE believes that this coordination must be done not only through accurate internal record keeping but also the adoption of a formal mechanism to ensure that staff share information about common issues and respondents.Previously for example, CASE recommended appointment of a Headquarters staff person to review charge data and coordinate consolidation of investigations among field offices.CASE also suggested compilation of a list of EEO staff with expertise in various aspects of developing and proving systemic cases as well as a protocol that would assist field offices in developing partnerships.
The second item, CASE emphasized the need to further improve the Commission's technology tools.And this is somewhat related to what I've said in the first item, as well as increase adherence to charge processing protocol so that the relevant charge data is available and accurate when staff nationwide use it.So the first group of CASE was pleased to see that a second group of CASE members was appointed in March 2012 which includes both Reuben Daniels and John Hendrickson.The second CASE has already met and is actively planning its work.I've talked to most of the members and they're enthusiastic about their plans.I'm confident that CASE will continue to review the Agency's systemic efforts and systems in conjunction with the strategic plan and will be a valuable source of assistance to the Commission in its implementation.Thank you very much for having me.
CHAIR BERRIEN:Thank you very much now we'll turn to Kathleen Mulligan, President of EEOC's Administrative Judges Association.
MS. MULLIGAN:Thank you Chair Berrien, thank you Commissioners, General Counsel Lopez, I am speaking as the President of the AJA.I also served as a Supervisory Trial Attorney when Jack Rowe was the Regional Attorney and when the prototype PCHP was developed.So I am somewhat familiar with the strategic enforcement aspect on the private side.
The AJA filed written comments on the strategic enforcement plan which we will not repeat here.Rather, we want to make one central point.As far as the AJs are concerned, the major accomplishment of the Strategic Enforcement Plan must be to protect due process in the federal hearings program.If it does not do that, it does nothing.Efficiency without due process is worse than inefficiency with due process.But, we believe there is a way to accomplish both goals of efficiency and protecting due process.The Commission's budget requests and the reports to Congress are a clear record of the need for significant reform of federal sector structure and management.Congress is especially concerned with how the Commission will address the crisis in the federal hearings program.
Some of the prior comments today cause concern for us, that we are not clear on the difference between enforcement staff and judges.Judges manage the pre-hearing litigation process fairly and efficiently.We conduct fair and efficient hearings.And we issue legally correct and timely decisions.The Commission resources, many Commission resources have bypassed the federal sector even though we have a large and growing caseload of class cases, most under the ADA/AA.My caseload now consists primarily of national and regional class cases with between 100 and 40,000 class members.I'm not special, Judge Stilp in New York has an ADA/AA case with perhaps 100,000 class members.
Yet the systemic program which invested enormous resources in the private enforcement program bypassed federal hearings. There were under the strategic and, excuse me, the systemic enforcement program, new SES positions were created, investigator positions were upgraded, and new social science positions were created in the field, all at appropriate professional grade levels.That was a good decision.There were good reasons for doing that.But that systemic program entirely bypassed federal hearings, even though in 2007 an Administrative Judge who has since left the Commission as approximately 20 percent of the Administrative Judges in the Commission have done in the past three years, settled a national ADA/ no, no slash because it was 2007, ADA class case for $60 million with thousands of class members.And yet that was nowhere reflected in the systemic enforcement program.
Mediation also has generally bypassed federal hearings with an exception in L.A. which is a historical accident through the creativity of my supervisory judge and not as a result of any strategic plan.As the Chair, the Commissioners, and President Martin know, other agencies manage adjudication programs to be both fair and efficient under the due process model set forth in the Administrative Procedure Act, the model used by most federal agencies, but not by the Commission.The Administrative Procedure Act protects the rights of federal litigants to a fair hearing on the record decided only by a fair and unbiased ALJ without influence of any other agency personnel with conflicting interests.This is not the forum to repeat the examples of interference with due process and conflicting interests which we have previously described to the AFGE and to the Commission.
For the Strategic Enforcement Plan to fix the crisis in federal civil rights hearings through technology and case management, the focus must be on due process. Technology and case management are a means to an end.For federal hearings the ends should not only be efficiency but a fair hearing model, including fair hearings for tens of thousands of potential class members in our increasingly large caseload of national class actions.
The best models for providing fair, efficient hearings using technology and case management are already at work in our two most closely related sister agencies, the Department of Labor and the National Labor Relations Board.Both have enforcement arms and separate adjudication programs.Their ALJs have been productive and efficient for decades.There have not been repeated calls to the Hill to explain why cases are taking so long.Their process is governed by the Administrative Procedure Act.That is because under the APA, their management structures are rational, efficient, and respect due process by having judges managing judges and preventing interference of non-judicial staff in case decisions.
Two, they have rational staffing patterns so they are not paying a professional salary for an ALJ to spend 20 percent of her day on clerical work.Talk to former AJs and SAJs who left the Commission if you doubt that number.They have made technology, three, a part of case management for at least a decade. And four, there has been no mass exodus of Department of Labor or NLRB judges so their agencies do not incur massive costs and opportunity costs of hiring and training replacements.
From our viewpoint there has been enough delay in implementing due process and enough inequality of resources within the Commission.The Commission is looking at a plan, on a plan deadline of the end of FY '13. The Commission should implement this Strategic Enforcement Plan by setting a schedule for our transition to the Administrative Procedure Act now.The statutory authority is already there, has been there since 1978.The Commission may appoint ALJs.OPM needs to be consulted to schedule and set a timeline for the process during this fiscal year so that it can be implemented next year.Meetings with the Union need to be scheduled now to arrange for the transition without any adverse impact on incumbent employees.
This crisis will not be fixed by denying the facts but the Strategic Enforcement Plan can be the way to fairness and efficiency in the federal sector with the key being to starting the implementation of the APA now.
CHAIR BERRIEN:Ms. Mulligan, can you wrap up?
MS. MULLIGAN:I do look forward to your questions.
CHAIR BERRIEN:Thank you and finally we have James Lee, Deputy General Counsel and Chair of the EEOC SES Advisory Council.
MR. LEE:Thank you Madam Chair, Commissioners.On behalf of the Council, the SES Advisory Council was formed in 2009 to express the views of senior executives at EEOC on issues that the Commission, it grew out of a work group in 2008 which had the task of making a proposal to the Agency as to how it could remain relevant in the coming years.We saw difficult times ahead for EEOC both in terms of the budget we could expect to receive as well as our ability to maintain staffing levels.Unfortunately, our view of the coming years was correct.Staffing is well below previous levels and the budget has been tight to say the least.We thought then and we think today that only by taking a strategic approach to our enforcement efforts can we hope to eradicate discrimination in the work place.
We welcome the Commission'scommitment to a Strategic Enforcement Plan that updates and refines the EEOC's National Enforcement Plans and serves to focus the efforts of all of us at the Agency.The SES Advisory Council has previously urged the following, that the Commission's resources be concentrated on systemic enforcement and litigation, that litigation efforts be concentrated on high impact litigation that would bring relief to the greatest number of victims, and that the burgeoning charge inventory should be addressed by invigorating the Priority Charge Handling Procedures, PCHP.
We note that considerable work has been done in furtherance of these recommendations in the intervening years.We continue to believe this approach is critical to the mission's success and should be an integral part of the Commission's Strategic Enforcement Plan.And if we can reflect back a bit to the time before we had a National Enforcement Plan, because I think it's important to the extent we can learn from history.The original National Enforcement Plan was born out of the reform efforts of the mid-'90s.These were bottom up efforts initiated by EEOC employees with the objective of clearing away Agency imposed impediments to a vigorous enforcement program.These impediments came from a top heavy Headquarters operation that required the field to comply with a rigid one size fits all reprocessing requirement, and from a full enforcement policy that resulted in anything but strategic litigation.
And I hearken to that because I heard echoes of that this morning from those who would suggest that every conciliation failure should rise up for some sort of review as to whether it should be litigated or not, hardly a strategic approach.The insistence at that time that we only resolve cases in conciliation for full relief, the insistence that investigators continue on with investigations long after it was apparent that we would never find a violation, so that there needs to be the flexibility in the investigative process, and through our very processes, giving our resources to respond to the situation that we find at hand.
In the interest of the public service serve, we ask that you reject such a return to the past.The SEP should set the Commission's enforcement priorities, this will ensure the most effective use of the Commission's resources by seeing that available funds are devoted to those efforts that most effectively advance equal employment opportunity.Managers need the flexibility to use the process tools and the human and fiscal resources available to them as the situation demands, in order to meet those priorities.The SEP should not devolve into an attempt to prescribe how investigations are conducted, but rather set forth those issues which the Commissions believe that should receive maximum enforcement effort.
We ask for a plan that is effective and that leverages the capacity of the Agency in these difficult times.We note that part of the planning process for the SEP is the matter of integration.It may be that the meaning of that term lies in the eye of the beholder.To some it is the basis for restructuring various parts of the Agency to others it is the need for dual reporting lines, to others the need to end legal enforcement interaction.We believe that such changes, even if desirable, and most of the proposed changes are emphatically not helpful, should not be a subject of this process as demonstrated by the last field reorganization. Organizational change is quite disruptive.Such change, coupled with new priorities would hamper effective pursuit of those goals.
On behalf of the Senior Executives I wish to thank you for asking for our thoughts on the new Strategic Enforcement Plan.And we look forward to working close with the Commission on the development of the Plan and its implementation.Thank you very much.
CHAIR BERRIEN:Thank you and we'll turn now to the questions, Commissioner Barker.
COMMISSIONER BARKER:Well again, thank you and this is the panel that frankly I've been looking forward to because you have the historical knowledge base that none of us as Commissioners have.And so we gain a lot from you.And frankly this would be great if this were like a half day session with just all of you.But I just have a couple questions.And Ms. Martin, you've mentioned your concern about numbers-driven cases.And I'd like for you to have an opportunity to expand on that a little more and explain what you meant.
And Reuben, you had talked about your concern for, I took it as the need for additional discretion by District Directors.And I'd like to hear you expound a little bit on that.Thank you very much.
CHAIR BERRIEN:Thank you and just a reminder we will unfortunately have some people who are going to have to go to a flight so please keep questions short.Commissioner Feldblum.
COMMISSIONER FELDBLUM:Yes well I would encourage anyone who has a flight to just, no matter where we are, get up and go and get that flight, just a little recommendation to you.
Okay, so both Ms. Martin and Ms. Mulligan, both of you put in as statements your comments on the Strategic Plan which we voted on in February, and didn't put in anything on the Strategic Enforcement Plan per se so I'm certainly hoping and I, this is the same thing for the Attorneys, for John.I am hoping that before we vote this September 2012, not September 2013, that we get from, actually this is from the Union, from the AJs, from the SES group, and from the Regional Attorneys, and from the new CASE, because we haven't gotten in any of here yet, I would like before I vote at the end of September 2012, your sense of what the priority issues should be for the Agency, your sense of how we do a better integration between the private and federal sector work, that was a huge piece in terms of the Strategic Planning Working Group, that we were not effectively leveraging for example, some of the class cases that were happening in the federal sector, as well as integration of outreach and education with enforcement.So I would appreciate getting all of that.
I think in terms of your point, and this goes to both Ms. Martin and Ms. Mulligan, for example performance measure three on case management, that is to be done by September 2013.And as I said before, I think it might be smart to have a meeting about implementation of the Strategic Plan whether it's meeting of targeted equitable relief, the case management, et cetera.
So for the two comments that were made about the Strategic Enforcement Plan, number one to Mr. Hendrickson, I just want to note for the record, I have no desire for removing the delegation, nor do I have any desire for the RAs to stop reporting to the General Counsel.I do believe that the General Counsel by statute brings litigation on behalf of the Commission and there is a certain amount of overview and oversight that needs to happen by the Commission.And to you, Mr. Lee, on the question of returning to old ways of doing things, let me just reinforce that when I said in the beginning a back to the future moment to Mr. Gil Casellas, it was that what happened in '94 to '98 stopped a lot of that stuff, put in some new ideas and new structures, and from my perspective a lot of the work has been done.Now we need to really make sure that the grooves are in place so that happens.
So my one question, I feel, Mr. Daniels, that you did talk about and I thought when I read your statement, when you said, "It should not be a litany of aspirational goals that exhort staff to do more with less resources and less staff," I wrote "Yes."And then I wrote, "But you need to deal with the ramifications of doing less."And by that I mean the psychic ramifications.The other thing you said is that, "Having an array of target priority issues is just the first step," and then, "offices are allowed to identify issues and policies to which they may best contribute to the SEP."That makes sense to me.My question is, based on what we heard this morning is, and where I'm now leaning towards, is that there is a set of priority issues based on whatever set of principles.And again, I welcome the thoughts of the staff on that.But once that's set, it's not that every office is doing every one of those issues.It's not that everyone's doing ADA leave cases and it's not that everyone is doing criminal guidance in terms of systemic. We've got to figure out which offices should be taking the lead.And what that means is there are psychic ramifications for doing less.Because what if you're not the office that's doing that, not chosen to do that?And then where does that go?
So number one, I'm curious about your reactions to the idea of a set of priority issues that are national but then not every office enforces it.And then beyond that I just look forward to I hope in writing, recommendations from each of these groups represented.Oh, Mr. Cash whom I left out, your piece was very helpful in giving an example of legal enforcement interaction that I hope will be reflected in our Strategic Enforcement Plan.
CHAIR BERRIEN:Thank you. Commissioner Lipnic.
COMMISSIONER LIPNIC:Thank you Madam Chair.First of all, thanks to all of you for your testimony and thank you for being here.I have two questions. I'll take all-comers on this depending again on the indulgence of the Chair.The first one is slightly directed to you, Ms. Martin, but you talked about the mediation program, that you thought it could be more successful.Actually, I'm sort of interested in the comments of everyone on that and in particular about the mediation program. Is there a certain percentage of successful mediations that is required for the mediation program in any individual office to be viewed as successful?In other words, if you aren't having, you know, over 50 percent of your mediations, you know, that they're successfully resolved, does that mean we shouldn't spend any resources on mediation or we should have limited resources in that particular office?So I'll be interested in everyone's thoughts on that.
And then the second question, and this is again for all of you, this morning a couple of people talked about look, you know, I mean we heard over and over again about quality of investigations, that makes such a difference.But also, you know, don't blame the investigators that we really, a lot of this is a matter of supervision.So I'm interested in any of you again, I'll take all-comers, your thoughts on that and the difference that can make.
CHAIR BERRIEN:Thank you.General Counsel Lopez.
GENERAL COUNSEL LOPEZ:This specific question is for Reuben, really following up on some of what Bill talked about with respect to the landscape in Little Rock and Northern Mississippi in terms of the absence of private attorney generals.It's nice to hear from people who are outside of San Francisco and New York and Washington, D.C. where we know there are a lot of private attorney generals doing the work.But I was just curious as to whether anything that Mr. Cash said resonated within your district.And I know your district is pretty large and covers several states just in terms of the presence of the private attorney generals and what they're doing in your community and the areas where you feel like the EEOC really needs to have a presence because there's really not the private attorney generals there.So that's my specific question.
The general question is, I know that several people listened in or attended the session this morning.And there were I think empirical assertion, a variety of empirical assertions made about what we do or what we don't do or how we're structured and how we don't, you know, how we're not structured that drive a narrative about the Agency.And I think we can say the narrative about the Agency to the extent that people are telling it, you know, is true.But I guess my question is, did you hear any empirical assertions made, did you hear any factual assertions made earlier today that you think are just incorrect?And how does that really change the narrative that you want to tell about the Agency?
CHAIR BERRIEN:Thank you.Director Kores.
DIRECTOR KORES:I have two things. The first thing, whoever, if someone has given this idea some thought and feels like they can comment on it, I would like to hear it.But I've been thinking I guess as Elizabeth was speaking of the Committee of Advisors for Systemic Enforcement whether something like a Committee of Advisors for Priority Enforcement might work and help us to, as Reuben mentioned, the challenges, the enforcement of priorities across the country, whether something like that mechanism, the case mechanism could work for priority enforcement.
The second question I have is, I guess related to what the General Counsel asked, maybe a slightly different approach to it, I am aware, we've heard a lot across the day about the poor quality of the work done by the Commission, mainly investigators and attorneys is the way I was interpreting it, maybe it was broader than that, maybe it was narrower than that.But I'm aware of quality work that the Commission has done.And I'm thinking that among this group there is some knowledge in that respect as well, to the extent, we haven't heard it already, if you could, one or two of you think about those kinds of excellent cases that you know of and tell us what contributed to that being able to happen, to the extent we haven't heard it already.I know that we're short on time.
CHAIR BERRIEN:Thank you I have two things I'd like to present.One of the issues that we have been, that's required by the Strategic Plan is a re-visitation of the issue of whether there should be local enforcement plans.And I believe also, if so, how do they interact with the Strategic Enforcement Plan?And there may be other ways to parse this but I think one of the questions that the Strategic Enforcement Plan Work Group is grappling with and will ultimately need to resolve is, is it the national priorities plus whatever happens or whatever is suggested in sort of, as a local priority list?Or is it local priorities from among the national priorities or would it look like something else?Based on your experience I think it would be useful to get your perspectives about what the consequences might be of moving in either of those directions.
The other issue that I'd like to hear you all weigh in on, those of you who believe you can add, would want to add something about this is, what do you consider the most impactful work that the Agency has done in your experience?And it's arbitrary but I'll ask you if you can narrow it.But I think again, as a counter in some ways to some of the information we heard earlier which is, I don't believe was exclusively negative but some of it is negative.I think it is important for us as well to have positive examples of where the Agency has done exactly what people believe it is charged to do.And I think we should hear that from you to the extent that you want to weigh in on that.
So we will open the floor and I know that Ms. Martin, why don't we start with you because I know you have a travel challenge.
MS. MARTIN:I appreciate that thank you.One of the questions was to explain a little bit more about numbers driven.And where that comes from is the Commission traditionally says we have experts in the cases and we want to get experts in, resolve by a certain day or time.So we see that in enforcement.We see the question of what do we do about mediation?We want to see X percent getting convened, X percent getting resolved successfully.And we acknowledge that some may not but there's a number attributed to it.It comes to litigation.We like to see X amount of litigation.So numbers tend to push what happens.And so my comment about forcing the fit goes to the fact that we measure a lot of things by numbers, we have these overarching plans whether it's the national one or local one.And offices feel, and rightfully so in some ways, if that's what Headquarters is looking at then we want to make sure we're doing something like this.
I come out of what used to be the Denver District Office and is now the Denver Field Office.And one of the criticisms of that litigation program tended to be gee, you guys never have very much systemic litigation. And this is way before this recent wave of systemic litigation.And we would say, we always have one or two cases in our district, which at the time was Colorado, Montana, Wyoming, and the Dakotas, not a lot of huge employers.But we always had some systemic litigation.The makeup of the employers tended to be small.We had a regional attorney who said let's aggressively work with our FEPAs to find one case in some of these offices every year, at least one if not more, to improve the Commission or enhance our credibility.We are out there, we don't care if you're large or small.But numbers has always been a way that the Commission has measured what it does.And sometimes I think we just force the fit and make offices feel like if you don't have any litigation or if you don't have a systemic case of a particular ilk, you're just not effective.Some of that's human nature.I think if we talk about a plan we have to find a way to manage that expectation and really look at what is the driving force?Is it that there's a national enforcement plan or somebody in Washington says there's all these kinds of issues, everyone go find them?Or is it a national plan that says locals, tell us what's out there, tell us what you do, and start treating offices a little bit differently.
New York probably doesn't have a lot of farm industry cases.It's probably going to have, the whole state is probably going to have a lot more cases centered around all the industry in New York and the communities around it.Most states are going to have one big metropolitan center with lots of kinds of cases and then huge, vast pockets of tiny, tiny employers.So if we just push numbers and we're not cognizant of what the various industries are or where the egg industry is or where the farm workers tend to work on their migratory route, then I think we've done a disservice and that's what I think makes employees in particular feel like it doesn't matter what we do, it's never enough, it's always about the numbers.It doesn't matter if we're really taking care of business here because we didn't get that case on somebody's list and we won't have that every year.So hopefully that addresses the question about the numbers.
I got a question, should there be a mediation success?I think I've kind of explained it because to me, having gone through some of the cases that worked out the best for me at the end of the day were cases that didn't necessarily settle.But they certainly were an educational piece, they certainly gave that employer and the employee the opportunity to talk about the issues that might not ever get discussed because nobody's going to say them in a deposition.They're going to be guarded about it in a mediation process.But it certainly opened the door to a couple of things, perhaps a better relationship for the people there, education for employers about the work we do and how well we can do it, and I happen to sit by our mediation unit so going in and out I get to hear the employers say things at the end of the day like, well thank your Mr. or Ms. Mediator.We didn't settle but this was a really good experience and I would try it again.
So I would really caution against setting a hard and fast number of, you have to have a certain number of successful ones in order to say that the program has a success.I would say instead, I think we need to look at how we define success in that program.And it has to be more than numbers.
To the supervision and does it make a difference, I'm going to kind of tie that with the General Counsel's question about are there incorrect assertions? I think employees at EEOC, I agree with Reuben.They love our mission.They come to work under some pretty adverse conditions in some ways, not that people are intentionally mean, it's just we have a ton of work to do, very few people to do it, and we're sort of cramming it in some systems that we don't tweak often enough.So we have systems for doing things that were created a long time ago and they need some tweaking.
So, squeaky wheels, I mean yes, squeaky wheels?We're going to hear from them.So if somebody had a bad experience they're going to say we have bad supervisors and they're not doing their job, or we have bad investigators.But our investigators, I think, are micro-managed.That's why one of my things is, I think we need to tell them what to do and let them use their expertise.We can give them guidelines, but I don't think it's bad employees or bad supervision.I think sometimes people don't like what we have to say, whether it's employers or the charging parties who come to us.And so they will say negative things, they will do negative things trying to get attention.Does that mean there's never a bad case?I probably wouldn't push it that far.But I think our employees work very hard every day to do the right thing.And I know that because I don't think you'll find an employee here, whether they're an attorney, an AJ, a mediator, a support staff who got an interest in a case and someone above them had to say, you're going to have to let this one go.I mean, we fight for our cases.We go back in and say no, wait, what about this?
And so I think we have, while I think it's too much supervision, someone else could think it's not enough.But I think that those supervisors and those employees try to do the best job they can every day because more than anything, they hate getting the complaints because that takes more time.They now have to give a file to an investigator and say, tell me your side of this story, depending on how old the case is.So that's more time that both of them don't have to devote to cases where they're saying, we like this case, we want to get this investigation done and we want to get it quickly.
So I think there's lots of good examples.What are they?Sometimes the best cases come, because I was doing systemic litigation before we had this whole program.And I'd just go find the cases.And so I think a lot of attorneys had that experience where they would develop a rapport with the investigator and say, tell me about your cases.Anything you need help with?And taking away some of the formalistic things made investigators in some ways more willing to say, can you tell me what to do on this case?Because as an attorney I can't really gig them.I'm not the supervisor saying, hmm, asked the wrong question.So I think a lot of what happens and how you engender that is you got to take away some of the structure to let them just be people talking to each other about something they both care very much about.And that's doing the right thing.And if it needs to be litigated, getting it litigated.
Supervision and correct assertions, the priority advisors like CASE?That might prove a useful thing.Having been on almost every work task group that has been mentioned today, I would say we do have to be careful that that doesn't become a driver.Because if nothing else, our employees are driven.So if you set out a framework and say I want it, they will try to do it.And sometimes again, we're back to the fittest force and it doesn't work as well as we would like.
If you're talking about a more loosely structured group where people could say we have, for example, this day, anybody that has a question, you know, we're going to take call-ins.Talk to us as attorneys of the day.What do we need to do about this?Whoever wants to be in the calls they come in, that might prove really useful.And if it needs to be, maybe it could be more formalized with video conferences where people have systemic cases here or here, let's talk about what we're doing.That might be useful.But I hate to see us saying we're just going to form another group just to form another group. I mean we do have CASE.And in many ways that's how I think they intend to be functional and helpful to people.So I'm not sure if another group is necessarily going to be helpful.
And quickly, most impactful work or examples of most impactful work, I was fortunate enough to be the attorney who said in Martin Marietta, I don't care what they say.They send rockets to the moon, they're going to give us some electronic discovery.I just don't buy it.And that really sort of turned that case around.I had been working with the investigator, we had a lot of problems.That impactful work, since I haven't been doing litigation recently, I don't have personal examples.But I can tell you in the offices where I visit, when I see the press releases I will say, oh yes, I happened to be in that office when San Francisco was working on one of the, I think it's Tanimura, the lettuce growers.I can say I was in Phoenix when they were doing a SEP on a particular case.And then I saw that Mary Jo was able to put out a press release.We didn't even file this one.Or we filed it and we immediately had a consent decree.So I think there's lots of examples out there.I would say that probably every press release we've issued on a case really had to do, somewhat with the formal structure we have for moving those cases.But really with the commitment of those employees, outside of what management was saying to go talk to each other to keep the cases moving.
CHAIR BERRIEN:Thank you.Do you want to open the floor?Yes.
MR. LEE:Yes if I may Madam Chair, I'd like to respond to your questions.One is the, you know, what's been the work that has been done by the Commission that has had the greatest impact?And I don't think I'll go to, you know, a particular examples.You can usually read those in the clips everyday in some of the very egregious cases that have been addressed by the Agency and relief sought, whether it's the young woman who in their very first job has been subjected to sexual harassment, or the individuals who haven't been hired because of their race, or whatever the circumstances might be, but I believe that the biggest impact is that we have kept through our efforts in the public arena, the issue of employment discrimination in front of the American public and have made the employer community and the community at large aware that these things continue.I can only, and that we've been able to resolve them, that we are there, and that we are addressing these matters.And I think that's of vast importance.
I can only give you an example from when I was a Regional Attorney and we found that a very large pharmaceutical employer had engaged in a longstanding practice of sexual harassment by the highest management officials in the country.It continued because some individuals, who if they sought counsel, resolved their situations with confidential agreements.And it was never remedied.It was only when we got involved that that was remedied, that the public knew that it was remedied, the public knew what the consequences were for this sort of behavior.So I think that's one of the, certainly at least one of the most important things that we've done is that we've kept the issue before the public.And I think it's very important that we get our story out, that we leverage what we do by doing so as cautionary tales to employers.And provide courage to employees to come forward and seek relief.
On the second part of your inquiry on local enforcement plans, I think this is something of a tricky area.And maybe this is why the SEP group struggles with it a bit.I would say that one needs to recognize the dynamic nature of case development, that it is not, onedoes not choose cases the way one chooses produce, by rolling a cart down the supermarket and saying I want one of those and two of those.It develops from a lot of hard work by investigators and attorneys.And it doesn't always prove fruitful.
So the failure of the LEPs in the past was at least in part that they, you know, were required to attach lists of charges that were being identified as priority items.And the next time one saw the next iteration of the plan, 80 percent of those matters were no longer on there because they had either been resolved, they had not proven to be a violation, or the next.But I don't think, to the contrary that the national priorities set by the Commission should limit what we bring, many people this morning talked about many day to day sorts of discrimination, whether it be pregnancies discrimination or any other such issues, that I think that we must still in some way address, even though we're guided by the Commission's aspirations regarding priority issues.
Where cases develop, and where they're going to have the greatest impact, and where the best cases will vary on any given day.So I would caution against the concept of designating offices by issues because it may well be that at some other office, that the best case will come from, and if they're, have a disincentive to pursue that in their office, we may well miss the best vehicle to address the issues that we want.
MR. DANIELS:Madam Chair, if I may, I would first start off by echoing what Jim just said and I think that will take care of a couple of questions.I agree wholeheartedly with his comments both on the concerns about the local enforcement plans and how they need to interact at a national level. Certainly I thought the comment by prior Chair Casellas this morning was very telling. And I think he used the umbrella analogy in terms of creating an array of issues from which the local offices may best react to, based upon what they see coming through their door or what other entities may bring to them from which to choose.
Certainly in terms of our staff and where we're going, I would just, you know, like to make one more point about our staff.The inventory has grown but I would say that without fail, it is not because our staff have slowed down or in any way missed a beat in terms of their commitment and the quantity and quality of work that they have committed themself to continue to produce.I believe it's because of the rising inventory, the rising intake, the need of people to visit our doors.And I think if you look year over year, both in terms of resolutions, monetary benefits, those press releases that were referenced that sort of highlight the many instances of good work that we do, I think it just sort of points to the fact that our folks are continuing to work hard and they're very dedicated and they're being extremely productive.
On that note though, I think there was a couple of issues raised regarding numbers.And that's always a very difficult discussion, both in terms of whether it's for ADR or for investigations, it is not so much that I believe that our program is numbers driven; it is the fact that you have an immense amount of work coming to your door and it must be addressed in a timely fashion.I think that's one of the themes that I heard today.Now people had different approaches to it, you know, limited quality investigations and, you know, various other concepts that, you know, I'm not sure exactly what they mean at this point. But at the end of the day, the one constant was that people come to us to have issues addressed.They expect those issues to be addressed in a relatively timely fashion.
Now in how we define timely, you know, that may vary around the room, certainly varied I think with the panel, some of the panels this morning.But, you know, I think if you look at the history over the last ten years you will see that I think offices have adapted their systems, whether it's the systems for how they handle ADR, how they handle enforcement charges, even litigation, they've adapted systems that allow them to move inventory at an ever-increasing pace and to do it efficiently.Are we there yet with respect to our use of technology and making sure that every case is done exactly right?Probably not.There's always some room for improvement.But I think overall we do maintain a very high level of quality.And the one thing that I would, you know, caution against is the notion that somehow we need to have some super review at a quality level of everything that goes on in the field.We went that road before with the DRIP program and, you know, and I think history will tell us that was pretty much a big disaster, you know, it took a lot of resources for very little result.
Even one case missed I understand can be a tragedy for the individual affected and we take that very seriously.However, we also understand that given the resources available that choices have to be made.We are going to have to make some very hard choices in terms of, you know, what we prioritize and where we direct our resources. And of course, I think the folks in the field are ready to work along those lines.
My comment on discretion for directors really went to I think, the second phase that Chair Feldblum sort of mentioned this morning, which is the quality control plan.This all is going to work together.And it is certainly a concern that, you know, we understand that we need to have quality metrics.What those look like, certainly is a topic for another day.But I would just urge that they be handled in such a way that your field staff, your field managers, feel empowered to make hard choices and that they will not be penalized later on if it's a borderline decision or something that someone else looking at it later on might have made a different call.It is very important that we have that kind of discretion to act in a manner that addresses the moment in a rational way.
The question came on the terms of a private attorney general.Certainly the availability of private counsel varies across the country.We have the same situation within our state.We, you know, have a list of private counsel who have indicated a willingness to work on these cases.It's a shrinking list quite frankly. And, you know, I find that in one state in North Carolina, we have a pretty good roster in the major cities. But once you get into the rural areas and then you get into the other two states that are within my jurisdiction, the number of available counsel drop off very dramatically.
One of the things that I've been working on with my program analyst, and we just had a discussion with actually some attorneys who do exclusively representation of defendants, of employers.And we had a discussion with them last week about partnering with us to provide some training for the plaintiff's counsel.We want to create some sessions where we bring in plaintiff's counsel and train them and, you know, I think they need to have worthy opponents and we need to have some worthy assistants to work with us in that private, that attorney general capacity.
In terms of the impact of offices that may get designated as leads and, you know, what that means in terms of the psyche of offices that some get chosen, some don't get chosen, I would urge us to both look at our model for what we've started to do with our systemic investigators, and also to look at what is happening with OGC.I think they are working on a very collaborative model where they are pulling resources from across the country to help.
Certainly we don't have systemic investigators in every office.That was one thing that was ultimately our goal.I understand the reasons why that has not come to be.But even now, those folks are assigned to various offices around the country, you know, we can continue to work to develop that program and as the good cases develop with a particular issue in any given office, then there should be encouragement on a regional or even national level that offices and staff collaborate to address those issues and feel very proud that they are a part of a national law enforcement agency.Thank you all.
CHAIR BERRIEN:Thank you.Anyone else?
MR. CASH:I'll be brief.I just have a few things.Reuben got about everything I was going to say so that saves a lot of time.But just a couple of comments, in terms of mediation, in Little Rock our mediation success rate is running right at 90 percent.We're very pleased with it.It's something that we can communicate to our charging parties and to our employers.And I think that has been in large part to the work of our ADR coordinator.
Getting to what General Counsel Lopez was asking about, there were a few things that came up in the narrative today that I want to comment very briefly on.There was discussion about there being some difficulty in settling throughout the process. In our district at least, we put an emphasis on we will talk settlement from the time the charges is signed to the time it goes out the door.When I go out and speak to attorneys groups, when I go out and speak to SHRM groups, when I got out and speak to just about anybody, I hand out my phone number, I give out my email.My supervisors are under instructions to do the same thing.People in our community, they know who we are.And if we get a call with, and they're interested in trying to resolve a case, even very early in the process we will definitely fully explore that.
There were a couple other suggestions about triaging of charges and fact finding conferences.We meet multiple times a week.We try to get charges prioritized as quickly as we can.And as I mentioned in my comments, we have frequent contact with our lawyers about that.We have very successfully used fact finding conferences, I think both to push the cases forward and it has to some extent assisted in settling cases.We extensively use on sites.
To talk to kind of combine the two questions about quality work and kind of impactful work, some of the ones that I think we've made a big difference on in the last few years have been race, and to some extent race and retaliation cases in Arkansas, Tennessee, and Northern Mississippi.And also kind of getting back to what Mr. Lee said, we've had a lot of sexual harassment cases involving young women, frequently teenagers in their first job.These are the kind of cases you wish would go away but do not.But I think we have made some very positive impact and done some really good work in that area.And I think as part of that, we can use that when we communicate with employers, when we communicate with our stakeholders as part of our outreach and our education, to present it as a cautionary tale, here are the things that you want to avoid.With that said, I'll give up my time to the other folks.Thank you.
MS. MULLIGAN:May I speak since I am the sole voice of the federal hearings program?First of all I, this is sort of following up on this earlier session.The quality in the investigations in the federal sector is poor to dreadful. Every once in a while, somebody issues a report, I don't know if it's somebody in Headquarters, I don't know if it's a contractor, which says that the investigations meet some criteria at a very high rate and all the judges shake their heads and scratch their hands and say how could this possibly be?Why is it that out of the 2000 case files I've looked at, two were adequate?
I'll give you an example, oneexample, they put documents in the file with no foundation.There is no declaration from anybody saying where they came from, that it's a complete production that they looked for them.It's just ten random pages stuck in there.And that is assumed to be responsive to a request for production of documents during the investigation.It's because the agencies are economizing so much that they are paying so little that the investigators are not properly trained and can't do a good job.
The second thing is, that that makes discovery incredibly important.And the Commission needs to address this on a systemic basis, on a nationwide basis.There are too many agencies abusing discovery, especially with unrepresented parties, especially in disability cases where they are engaging in over broad discovery, asking for way too much medical information, asking for tax returns, asking for discovery they are not entitled to.
These complainants who are unrepresented because private attorneys general do not exist in the federal sector.Why?Because federal agencies don't settle.They don't face the same economic consequences when they are liable, either in terms of bad publicity because everything we do is not published.Or in terms of any consequences financially because it comes out of a fund.The manager doesn't suffer.So the discovery process is just full of abuse especially with unrepresented parties.And it's not an availability of private counsel except perhaps in the D.C., Baltimore area where you have higher level people who can afford to pay.
But if the Commission would take a comprehensive approach to the discovery process, and I'll throw out an egregious example so that you can see how this would simplify case processing.If agencies could not assert a Privacy Act privilege in discovery responses, without doing what they're supposed to do to assert a privilege, have a log, have a declaration, have descriptive evidence which they have to give in their responses to discovery, then that would cut down on abuse quite a bit.
Because right now complainants are not getting discovery responses.The agency says we claim Privacy Act, period, that's it. And they don't know, they don't, they can't figure out, the complainants, how to get around that.They assume because a federal agency lawyer is telling them they're not entitled to something, they have no remedy to get it unless they've been through the process before and then they'll know.But there are ways to streamline discovery process which would make routine discovery disputes which consume a lot of time as every litigator knows, which would be very helpful.
The other thing would be if there would be more definitive requirements for specific parts of the investigative files, that would be very helpful.The rest of it depends on, I think if you had judicial managers talking to judges to see how to improve the process we could find a lot more of them than the current system.
CHAIR BERRIEN:Thank you.Elizabeth.
MS. GROSSMAN:Thank you I am going to speak for myself and not for CASE because I don't think I can speak for CASE.So I hope that's okay.I agree with almost everything Reuben and Jim and Bill said so I won't repeat much.But one thing I want to emphasize from my perspective is the strength of the field offices is the flexibility that each of those field offices can exhibit and demonstrate.And to the outside world, for an attorney or a person who works at a non-profit or some of the panelists that you saw today, they might see two district offices or two field offices and say oh, that looks different.That's weird.It should be the same.But from the internal perspective we see that as the strengths.And so I don't believe that some of the panelists fully understand how that diversity is helpful.
In legal enforcement interaction is a good example, the mediation program is a good example.So Bill talked a little bit about how legal enforcement interaction works in his district.It's very different in other districts.It's not better, it's not worse.It's different.There's a different culture in every office based on the staff there, based on the history there, based on some of the dynamics that Bill talked about, about where the charges come from, what the private bar is doing, what the responsiveness of the employer community is doing, how integrated it is with, you know, the other offices in the Commission.And so I've had the opportunity in some of my tasks that I've been given over the years to really look at how it's being done in different offices.And there's lots of things I may admire from afar.I don't think that would work in my office but I think that's a really interesting idea and it's clearly working for them in their office.So I very much view that as a strength.
In terms of the suggesting of a Priority Enforcement Committee, I'd like to put out there if you look at the CASE charter, you know, CASE is available for the Commission.CASE, the idea of CASE as contemplated by the Systemic Task Force Report was that a Chair or the Commission would say, we have a job for you to do.We want you to comment on these priorities.We want you to do this.CASE is not a management function.The charter makes that perfectly clear.It was not designed to be a layer of review.It was designed to receive tasks from the Commission.And that's what it's set up to do.And I think you have an awesome array of people on it and I encourage you to give them some of that work.
I do not think that issues should be divided up among offices.I do, as I did talk about from the CASE perspective, believe very strongly that investigations should be divided up among offices.And that offices should handle nationwide investigations.And that in some situations, we're still looking at a couple different offices doing a regional or local investigation on the same issue.And when we have to learn about this from the employer, that is not right.We should know this and we should be coordinated and we should be clear.And the employer comes to us to say help us, fix this, this isn't right that this issue is being looked at by other offices.But unfortunately, we don't always catch that because of our internal systems.And the employers don't always catch that because they're internal systems because they have local counsel.And those local counsel talk less than EEOC investigators.And so I do believe that it is an important function to coordinate that.
And finally, in terms of the question of the most impactful work that I've done, it really is not any particular case.It is the compilation of, you know, coming to work every day knowing that we're litigating on behalf of people who without us would not have representation and would not have access to justice.And that's what I think keeps a lot of attorneys in this Agency coming to work every day.Thank you.
CHAIR BERRIEN:Thank you.John, we haven't forgotten about you, if you're still there, if there's any last words you'd like to add.
MR. HENDRICKSON:I'm still here.I will take about 30 seconds for my last word which is to say I think that I agree with almost everything Elizabeth said, particularly the notion that spread across the whole country we have 15 different districts.And I think I understand from some of the comments that I read coming in, was at least some people are as well, we should be, as the same cookie cutter should apply, doing everything nationwide.I think we tried that once.It didn't work out very well.
And then there was, then we had a period where diversity, inconsistency, differences among the districts, was viewed as a way to encourage creativity and productivity.And I think by and large that works.And so I would urge you to resist the pressures and I'm sure you're under the temptations to announce rules or processes or something that'll be the same for everybody, and everybody will be on the same page.I think that's a dangerous approach and I hope you'll continue to allow the same level of diversity, creativity, inconsistency if you will, that you have thus far because I think it's really the way to bringing out the best, the most diversified approach to fighting this monster of discrimination.And every new and different idea we can bring to bear on that we ought to do so.
But I admire your patience for sitting there all day.It's been a long day for all of you I'm sure.So thank you.
CHAIR BERRIEN:Thank you.Thank you for joining us by VTC.We have gone over time so I know that we need to wrap up quickly.But I think we went over time because there was so much very, very important information.People went to great effort to get here or to get that information to us.And I think that we needed to provide the opportunity for that to be presented.So again, I want to thank this entire panel for your input.Obviously the one thing we know is that we do have and we do welcome more engagement with you throughout this process.And thank you Bill for being formally a part of this day.
My only closing remarks today are that a huge number of people did a whole lot of work to make this meeting happen.In addition to the panel who all did a lot to make this day happen.And I would be remiss if I did not acknowledge that members of my staff, Cathy Ventrell-Monsees, Joi Chaney, Patrick Patterson, Michelle Waldron, Janice Swiney, Phillencia Easterling, our legal interns Lindsey Smith, Patrick McCarthy, two interns from the Office of Federal Operations, Elizabeth Damm and Caroline Hyatt did a tremendous amount of work.
But also logistically this was different than any meeting we had both in its scope, its duration, and its format.And a number of people made that possible as well.So to Bernadette Wilson and the Office of the Executive Secretariat, Ron Larson and the team from OIT, Venus Hamilton and the folks from facilities.And I will also say, I want a shout out, we have had the same person working on the cart all day with very, very few, very little break time and that was extraordinary.
And finally to the SEP Work Group who have been grappling with these questions, who are working hard to be able to present a draft Strategic Enforcement Plan to the Commission that will be a useful point of departure for the conversations ahead about the final contents of the Strategic Enforcement Plan, and who just as I think we heard today, are receiving a very, very wide variety and diverse array of input about what we should do.One thing is very, very clear, beginning with our staff who are tremendously committed to this work and to the mission of this Agency, but obviously from the time that was given by the many stakeholders who we heard from, the former leaders of the Agency, people who are in private practice, people who are a part of many organizations that pull them in many different ways across government; they have all committed to this because they also care deeply about this Agency, what it does and its success in the future.And they value its successes in the past.So to anyone who has heard or taken anything other than that, I think today is a reflection of the great interest that many people have in the success of the EEOC and appreciation for its achievements and its contributions historically.
COMMISSIONER FELDBLUM:I have no final comments.
CHAIR BERRIEN:Okay with that, is there a motion to --
COMMISSIONER FELDBLUM:Move to adjourn.
CHAIR BERRIEN:All in favor?
[Chorus of ayes]
CHAIR BERRIEN:Thank you we're adjourned.
(Whereupon, the above-entitled matter went off the record at 4:59 p.m.)