U.S. Equal Employment Opportunity Commission
Jenny R. Yang, Chair
Constance S. Barker, Commissioner
Chai R. Feldblum, Commissioner
Victoria A. Lipnic, Commissioner
Charlotte A. Burrows, Commissioner
P. David Lopez, General Counsel
Peggy Mastroianni, Legal Counsel
Bernadette B. Wilson,Acting Executive Officer
Acting Associate Legal Counsel
Office of Legal Counsel
Acting Supervisory Trial Attorney
EEOC Denver Field Office
Charging Party/Class Member
EEOC v. Dart Energy Corp., et al.
Niehaus, Wise & Kalas, Ltd.
Fatima Goss Graves
Vice President for Education and Employment
National Women's Law Center
Employment Lawyer and HR Consultant/Trainer
HR Law Consultants
Carol Miaskoff, Acting Associate Legal
Counsel, Office of Legal Counsel
P. David Lopez, General Counsel, EEOC
Sean Ratliff, Senior Trial Attorney,
EEOC Denver Field Office
Laudente Montoya, Charging Party/Class
Member, EEOC v. Dart Energy Corp., et al.
Patricia Wise, Partner,
Niehaus, Wise & Kalas, Ltd.
Fatima Goss Graves, Vice President for
Education and Employment, National
Women's Law Center
Jane Kow, Employment Lawyer and
HR Law Consultants
CHAIR YANG: Good morning everyone. The meeting will now be called to order. Thank you all for being here. 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 to announce any notation votes that have taken place since the last Commission meeting.
MS. WILSON: Good morning, and before I begin, is there anyone in need of sign language interpreter services? Okay, thank you. Today's meeting of the Equal Employment Opportunity Commission will reflect that on September 2nd, 2014, President Obama announced the elevation of then Vice Chair Yang to Chair of the EEOC.
Today's record will also reflect that President Obama's nominations of Charlotte A. Burrows as a Commissioner for the EEOC and the nomination to a second term for EEOC's General Counsel, P. David Lopez, were confirmed on December 3rd, 2014. The EEOC is also very excited to welcome back to EEOC Cynthia Pierre as the new Chief Operating Officer.
So with that, good morning again, Madam Chair, Commissioners, General Counsel, Legal Counsel. I'm Bernadette Wilson from the Executive Secretariat.
We'd like to remind our audience that questions and comments from the audience are not permitted during the meeting and we ask that you carry on any conversations outside the meeting room, departing and reentering as quietly as possible.
Also, please take this opportunity to turn your cell phones off or to vibrate mode. I would also like to remind the audience that in case of emergency, there are exit doors to the right and left as you exit this room. Additionally, the restrooms are down the hall to the right and left of the elevators.
During the period March 8th, 2014, through January 9th, 2015, the Commission acted on 68 items by notation vote:
Approved Litigation on sixteen (16) cases;
Approved Amicus Participation in nine (9) cases and Disapproved Participation in two (2) cases;
Approved two (2) Federal Sector Decisions;
Approved eleven (11) Subpoena Determinations;
Approved Enforcement Guidance on Pregnancy Discrimination and Related Issues;
Approved FY 2014 Budget Allocations for State and Local Programs;
Approved a Notice of Proposed Rulemaking (NPRM) on Federal Sector as a Model Employer; an NPRM Implementing Revisions to 29 CFR 1614.407; and an NPRM Regarding 29 CFR Part 1614;
Approved the Fall 2014 Regulatory Agenda;
Approved a Request to Change EEOC Forms;
Approved the 2015 EXCEL Conference;
Approved the following contracts: FY 2014 Information Technology (IT) Second and Fourth Quarter Acquisitions and FY 2015 Second Quarter Acquisitions; Renewal of Legal Research Services-Lexis and Westlaw; Interagency Agreement for Financial System Support Services; Renewal of the BNA Labor & Employment Law Resource Center and BNA Employment Discrimination Report Subscriptions; a Task Order to Conduct a Pilot Study; a Blanket Purchase Agreement for Nationwide Expedited Mail Services; an Interim Financial System and Support Services;
And Approved Resolutions Honoring Carole Harris; Frances Palmer; Gloria J. Barnett; Marilyn S. Booker; Ronald L. Crenshaw; Judith G. Taylor; Michael A. Baldonado; Joann C. Riggs; Jose G. Rosenberg; David Offen-Brown; and Mr. James A. Price ("Mr. P.") on their retirements.
CHAIR YANG: Thank you, Ms. Wilson. And thank you all for joining us today. We are happy the weather at least somewhat cooperated so we could start on time. We are so pleased to have this meeting with the full complement of Commissioners and to have our newest Commissioner, Charlotte Burrows, join us today in her first week on the job. This is also my first meeting as Chair, and I thank you all too for taking the time to join us in this important discussion.
This year marks an important and historic time for us as an Agency as we are celebrating our 50th anniversary on July 2nd. It provides an important opportunity for us to reflect on how far we've come in addressing our nation's promise of equal employment opportunity for all. And what we have seen over the years is that much progress has occurred. Yet, we have many challenges ahead and workplace harassment is one of those issues. This is sort of a fitting moment for us to evaluate the strategies that have worked and to think forward about how we can address them more effectively. We know that much progress has been made since the Supreme Court's decisions in Faragher and Ellerth over 16 years ago. They were issued in June of 1998. Many companies have adopted anti-harassment policies and they have invested in practices and trainings in an effort to prevent harassment.
Yet we see through our work that workplace harassment remains a persistent problem and we know that while having anti-harassment policies in place is critically important, there is much more that employers can do to make sure they are giving meaning to those words on paper. Complaints of harassment continue to be among the most frequent that we see in our charges. This past fiscal year, about 30 percent of our charges raised harassment. And it is also a significant portion of our litigation docket, as you'll hear more today from our General Counsel and our witnesses. And these charges span all industries. They include many of our most vulnerable workers, as well as those in professional occupations. We have seen the most charges from our data coming from individuals working in industries that include health care and social assistance, retail, manufacturing and accommodations and food services.
So we're here today to talk about how we can prevent harassment from occurring in the first instance and also how we can be more effective in our enforcement efforts, whether the harassment is based on race, disability, sex, religion, national origin, age or other bases. We'd like to understand what are the workplace conditions that give rise to harassment in these different areas.
The EEOC has a number of guidance documents and other technical assistance documents available on our website. And we are considering ways in which we can update this guidance to address some of the changing issues in the workplace of today. We are interested in your perspective on the impact of the Supreme Court's most recent harassment decision in Vance v. Ball State University.
As many of you know, our strategic plan for the four-year period of 2013-16 included among our six national priorities the goal of preventing harassment through systemic enforcement and targeted outreach. We are interested in hearing from you today on some of the recurring problems that you've seen in workplaces and industries that lead to patterns of harassment. What steps should employers be taking to prevent harassment, to adequately investigate charges and to remedy discrimination when they find that it has occurred? We would especially appreciate your ideas on how we can effectively target our outreach and education to prevent problems and prevent -- and to promote broader compliance.
To that end, today's meeting will kick off a broader effort to tackle the issue of workplace harassment. I have asked Commissioners Lipnic and Feldblum to co-chair a task force that will convene experts across the employer, employee, human resources, academics and other communities to identify strategies to prevent and remedy harassment in the workplace. Through this task force, we hope to reach more workers so they understand their rights and also to reach more in the employer community so we can understand the challenge that they face and promote some of the best practices that we've seen working.
I thank them both for their willingness to lead this effort going forward, and I want to thank each of our witnesses for their testimony that they will give us today and all of the work that you have put into providing your written testimony that's available on our websites. We appreciate your taking the time, for many of you, to travel from far distances to be with us today. And we feel very fortunate to have such an expertise here with us today from a wide variety of perspectives.
And I also, finally, want to thank all of those at the Agency who have had a role in pulling this meeting together. That includes Sarah Crawford and Muslima Lewis of my staff, Commissioner Lipnic and her staff, Jim Paretti and Donald McIntosh, and also Sharon Masling and Piece Blue of Commissioner Feldblum's staff.
And I would also like to thank our Office of Communications and Legislative Affairs, particularly Brett Brenner, Kimberly Smith-Brown, Christine Nazer and Justine Lisser, those in our Office of Legal Counsel as well as our Office of General Counsel who have shared their expertise in preparation for today's meeting.
I would now like to invite my fellow Commissioners to make any opening statements or comments, beginning with Commissioner Barker. Thank you.
COMMISSIONER BARKER: Well good morning, everyone. And thank you so much for joining us this morning on this very important topic. And I was very pleased to see that the Chair had identified this as the first topic of her term as Chairman of the EEOC.
Two things I'd just briefly mention. One is I continue to think that the most serious focus -- whoa, what was that? Is that a radio or -- oh, we're set. I continue to think that the most serious area and the area where I hope we are able to focus more and more of our resources in future years is in the area of immigrants, particularly Hispanic/Latino immigrants, young females who work in work situations that allow in certain circumstances sexual harassment to occur and where it's very difficult to control. You know, we have very young women, women who are as young as 14 who are allowed to work in the fields late at night, totally isolated where there may be no witnesses to not just sexual harassment but sexual violence.
And I think that when we address the whole issue of sexual harassment, we need to first and foremost look at sexual violence as the worst cases. These are cases that in many situations rise to the level of criminal offenses. But for various reasons, primarily because of the women's reluctance to come forward in a timely fashion, prosecutors are unable to effectively prosecute the cases. So it very much falls to our Agency to try to do what we can for these victims and to try to do what we can to rise above language barriers and cultural barriers and try to take extraordinary measures to protect these young women.
The second thing that I would say, that while we have some bad actors, we have some employers that allow these things to happen, that, you know, I think it would be a mistake for us to go into this meeting with the presumption that most employers are not very keenly aware of the situation and very strongly oppose any form of harassment, sexual or otherwise, and who aren't very involved in effective, continual training.
So that said, I look forward to hearing all the testimony this morning. Thank you, Madam Chair.
CHAIR YANG: Thank you, Commissioner Barker. Commissioner Feldblum?
Harassment occurs every day in the workplaces across America. That is an unacceptable reality. Read the facts from any one of the cases that we have brought, which I do on a regular basis, and ask yourself how you would feel if the facts in those cases had happened to your daughter or your son or your wife or your husband or anyone that you cared about.
How would you feel? You would feel angry, as you should. In fact, forget that. You would feel boiling mad, as you should. The question is what do we do about it, as employers, as employees, as friends and families of the employers and employees. What do we do about it as members of this community, because let's be real, employers don't want sexual harassment in their workplaces. I mean, first of all, they don't want it because it's illegal and they could end up paying for it. But they also don't want it because it's just not good business, not good for their workplaces. But in particular, what do we do about it, the five of us Commissioners of the Agency charged with enforcing this law, our employees across the country who are working on this issue.
Well, obviously one thing we can and should do is enforce the law vigorously. Employers need to feel that there is a strong sheriff in town and that they will pay if harassment occurs. I mean, that's obviously one of the reasons employers don't want sexual harassment to occur. And this sense of reality for companies that there is a strong sheriff in town has got to be the reality across the country, not just where there's a strong plaintiff's bar and not just by companies that are already sophisticated enough to have lawyers who can tell them what's wrong before we show up at their door.
But personally, I don't think the Commission needs a lot of advice or testimony on how to make its enforcement system better. I'm certainly happy to hear any ideas. But the reality is I think we have a very good enforcement team across the country. Now, any enforcement team, any enforcement system can be made better and for that, I would love to hear ideas. But we have a pretty amazing enforcement team across the country, even in places where there's not a strong plaintiff's bar.
And I'm particularly pleased that we are going to be hearing from one of the charging parties in a case, Laudente Montoya, who came to the EEOC for help and from one of our trial attorneys, Sean Ratliff, who in fact, was there to help, together with a lot of other people, as Sean will tell us.
But here's the problem, the bottom line. The problem of harassment continues. It continues even though employers spend millions of dollars doing trainings. It continues even though we spend money bringing cases and collecting millions of dollars in damages. So the first essential of stopping harassment, having a strong sheriff in town, is not enough. It's the necessary but not sufficient condition for stopping harassment. That is why in our strategic enforcement plan 2013 to 2016 we had two issues that we pulled out as needing outreach: stopping harassment and stopping retaliation.
So while I've high confidence in our strong enforcement team, I believe that to do the effective outreach, to do the smart training, we have to do that in partnership. We have to do that with employers, with advocacy groups. We need to learn from those in academia who have been studying this. So I am very pleased to be working with Commissioner Lipnic on the task force that Chair Yang just announced. I hope it will provide us a unique opportunity to share ideas and thereby come up with new and creative strategies so we can really make a dent in this problem that should make all of us boiling mad. Thank you.
CHAIR YANG: Thank you Commissioner Feldblum. And now, Commissioner Lipnic?
COMMISSIONER LIPNIC: Thank you Madam Chair. Good morning everyone. I want to extend my congratulations to our new Chair and congratulate her on her elevation to the Chair and also to moving to the middle chair. So I just want to tell you that, and you know, the more you come to the right, Jenny, Connie and I are very happy about that.
I also want to congratulate our General Counsel on his reconfirmation and welcome our new Commissioner, Charlotte. Glad to have you here.
I also want to thank, Chair Yang, your staff for organizing this important meeting. I know the amount of work that goes into putting these together and your attention to this topic is greatly appreciated. Welcome to all of our witnesses. Thank you for all the work that you have put into your testimony today. Having had to deliver testimony and testified on a number of occasions, I know what that's like and how much you have to put into it, so much appreciated.
I have told this story in a number of public forums over the past few years, that when I first came to the Commission in 2010, I was stunned and shocked by the number of harassment complaints we receive every year, not that I didn't know, of course, that sexual harassment or racial harassment existed in the workplaces. But when you take a look at our press releases every week, then you start to get a sense of how much this persists.
I had discussed this with our immediate past Chair, Jackie Berrien, and she had asked me to look into and survey our district offices, which I did. And the reports were not encouraging. I had heard over and over again after I talked to every one of our district offices, district directors, regional attorneys that if we wanted to, the Commission could have a litigation docket full of nothing but harassment cases.
In fact, we could have a litigation docket full of nothing but sexual harassment cases. That was true across the nation, in every region. Now, nearly five years later, it's still true and, of course, that was the case long before I got here. As I said, for a snapshot of the magnitude of the problem we face, just take a look at our press releases from the last few weeks of the last fiscal year, historically our busiest litigation filing period.
Of the roughly 40 pieces of litigation we filed, by my count, 11 included allegations of harassment, so roughly one in four. Indeed, that lines up with the overall number of lawsuits filed over the past few years. In the neighborhood of 25 percent of the Commission's lawsuits filed since fiscal year 2010 contained harassment allegations. When you consider the various laws enforced by the Commission, that is unfortunately a not insignificant number.
And then, as some of my colleagues have mentioned, when you look at the specifics of some of the cases, it's even more troubling. Sometimes, as Commissioner Barker indicated, these are violent assaults. It's often physical in nature and even in other cases when it is nothing but boorish behavior, I constantly find myself asking what do people have to do to be able to go to work, do their jobs and at the end of the day, go home without having to have put up with harassment in their workplace.
One answer to that question I believe is to empower more people to truly know they don't have to put up with it. People should know that they have an outlet, that they should report harassment. It's my belief that unless and until more people do that, we will be right here years from now still wondering what to do. I look forward to hearing ideas from our witnesses on how we can help improve in this area. And of course I look forward to hearing about the many issues employees and employers should be aware of in handling all of these important reports of harassment.
The other side to the equation is, and perhaps most importantly, how can we prevent harassment in the first place, how do we root it out at its source. How can we affect that moment before a person decides to mistreat someone else in the workplace based on sex, race or any other protected basis? How do we essentially make a cultural change?
Now I suspect that there are some people who are completely unaware of the laws that we enforce, and particularly as Commissioner Barker mentioned, for those parts of our population, particularly new immigrants who have no idea about our laws, how do we reach those people? There are more I'm sure who know it's wrong to harass or at least who have some idea that it's wrong but who do it anyway, for whatever reason. How do we reach those people?
One thought to add to these questions: I think it's important to remember that the origins of the different forms of harassment can be, I think, different as well. For example, I believe sexual harassment and racial harassment come from largely different places. They are in many cases driven by different biases or desires.
As a result, I wonder whether and how prevention strategies should and can be tailored to different forms of harassment. More generally, how should we be thinking differently about the different forms of harassment? On this, and of course on all these issues, I look forward to the insight of our witnesses.
Finally, I too look forward to working with my colleague, Commissioner Feldblum, on the task force that will come out of this meeting. I hope our discussion today emboldens those future discussions. I hope this task force is able to foster new ideas and, as Commissioner Feldblum said, creative ways to grapple with workplace harassment. With the understanding that we have been fighting this problem for a very long time, I hope we can reach a new level and turn the tide in favor of even more harassment-free workplaces.
So again, welcome to our witnesses. Thank you for being here, and I look forward to your testimony.
CHAIR YANG: Thank you Commissioner Lipnic. Commissioner Burrows?
COMMISSIONER BURROWS: Good morning everyone. First, I'd like to say that I am pleased and honored to have joined the Commission today for its first hearing of the year, my first hearing and also in this anniversary year as we look towards the anniversary of the Martin Luther King holiday and think about all the things that the Commission has to do to finish the work that was started 50 years ago when this body opened its doors.
So I'd like to also join in congratulating my friend, Jenny Yang, and her position as Chair and to thank the other Commissioners for the chance to join with them on this important topic.
The nation has made, as others have said, great progress in civil rights over the past 50 years and a great deal of that credit I think goes to the Commission. But as the written testimony that we've received shows and as some of the statistics that Chair Yang and Commissioner Lipnic and others have cited make clear, we still have unfinished business in the area of civil rights, as my former boss, Senator Kennedy, liked to say.
I was surprised in reading the Strategic Enforcement Plan to hear that harassment is one of the most frequent complaints raised in the workplace in some senses, that that's such a pervasive problem and that the experience over the years I think with civil rights statutes has been that when discrimination is sort of shut down in one form, new forms are found so that as the doors opened to actually hiring certain individuals in the workplace, then the next reaction to that in part unfortunately seems to have been, well okay, you're here. We've got statutes that say we have to hire you, but you're not going to be treated equally. So you have to deal with that new form and that's been the case with other civil rights statutes as well.
So there's unfinished business. Today's hearing is a good place to start. I'd like to thank each of the witnesses who are here today for joining us to assist the Commission in looking at this very important topic.
Americans spend an enormous amount of time at work. So it's in everybody's interest to make sure that, you know, they're treated fairly when they get there, both for employers, for employees, for the broader economy and of course because it's the right thing to do. So I look forward to the testimony today and to hearing from everyone. So thank you very much.
CHAIR YANG: Thank you Commissioner Burrows. And thank you all Commissioners. The item on today's agenda is "Preventing and Addressing Workplace Harassment." We are privileged to have a distinguished panel of experts here today. And I would like to briefly introduce each of them, and I'd like to direct you to their more full bios on a website, along with their testimony.
First, I'd like to introduce Carol Miaskoff. She is our Acting Associate Legal Counsel in the Office of Legal Counsel at the EEOC. There she supervises development of policy and regulations implementing Title VII as well as the Age Discrimination in Employment Act and the Equal Pay Act. We look forward to hearing from her shortly.
We also are pleased today to have Sean Ratliff. He is an Acting Supervisory Trial Attorney in our EEOC Denver Field Office. He joined us in 2009 through the Commission's Honor Attorney Program and as a Trial Attorney for the Commission, he has litigated and resolved several employment discrimination cases, including a 2013 trial victory under the ADA and also a recent settlement in a class case involving systemic harassment based on race and national origin, which you'll hear more about today. He was recently tapped to serve as our Acting Supervisory Trial Attorney in the Denver Office. Congratulations to you.
We would also like to welcome Laudente Montoya. He grew up in Albuquerque, New Mexico, where he resided for 40 years. In 1997, he moved to Denver, where he lived for 10 years before moving to Casper, Wyoming. Mr. Montoya was one of the original charging parties who ultimately intervened in EEOC's lawsuit against Dart Energy Corporation and J&R Well Services, LLC. He worked as a mechanic for J&R for two years in Wyoming but was laid off approximately two weeks after filing a charge of discrimination that alleged harassment based on his Hispanic heritage. So we are very pleased that you've made the trip out to share your story with us today. Thank you.
We are also very pleased to have Patricia Wise with us. She's been in practice for 30 years, specializing in employment law and generally representing management or employers. She is a partner in the firm of -- is it Niehaus, Niehaus -- Niehaus, Wise & Kalas, Ltd., and serves as Panel Counsel for EPL and D&O carriers. She is a co-chair of SHRM's labor relations special expertise panel, among her many activities. She has been an adjunct or visiting professor at the University of Toledo College of Law for 12 years. She has taught various employment law classes there and she's also on the faculty of the graduate school of banking at the University of Wisconsin Madison where she provides in-person and online instruction in employment law each year. She has also written a book on harassment: Harassment in the Workplace: Sexual, Racial and Religious Complaints and also in 2012, a book on retaliation: Understanding and Preventing Workplace Retaliation. So we're very pleased to have her here today as well.
Next, we'll hear from Fatima Goss Graves, the Vice President for education and employment at the National Women's Law Center. She works to promote the rights of women and girls at school and in the workplace and to advance equal pay for equal work, expand opportunities for women in nontraditional fields, address the discriminatory and unfair working conditions for workers in the lowest paid fields and ensure the development of fundamental legal principles of equal opportunity. Thank you so much for joining us.
And last but not least, we have Jane Kow, an Employment Lawyer and HR consultant and trainer. She has practiced in this field and provided human resources counseling consulting services for employers for over 20 years. She practiced at various law firms where she advised and represented employers of all sizes and across all industries in employment disputes. She also served as senior counsel and the sole employment lawyer at a Silicon Valley-based company with 75 locations worldwide, before founding HR Law Consultants in 2002. Her firm focuses on advising, training, auditing and investigating workplaces to ensure compliance with state, federal and local workplace laws. She regularly advises and trains HR and employee relations professionals on a wide array of employment topics. We thank her also for joining us today.
So again, thank you all for being here today. We would like to begin with Carol Miaskoff.
MS. MIASKOFF: Thank you, Madam Chair, Commissioners. As some have already said, it is already 16 years since the Supreme Court decided Faragher and Ellerth and put anti-harassment policies and complaint procedures front and center for employers. But apart from a short decline in sexual harassment charges relatively early in that period, the number of charges alleging harassment has remained high. I'm going to start by talking about some of this data. Since Fiscal Year 2010, over 25 percent of the private sector, state and local government charges filed each year with EEOC include allegations of harassment based on race, color, religion, national origin, sex, disability or age.
For fiscal year 2014 alone, EEOC's data will report that 88,778 charges were filed. Of those, 9,023 alleged racial discrimination in some form of harassment; 6,862 alleged sexual harassment and 4,848 alleged disability discrimination in some form of harassment. As the Chair already noted, since FY 2011, the most harassment charges have been in four industries: health care and social assistance, which basically includes doctor's offices, any kind of outpatient facility and home health care services; retail; manufacturing; and, hotels and restaurants.
For EEOC's litigation program for 2010 to '14, over 24 percent of the cases brought included harassment allegations. And I think as you've heard, we could have had many more. For EEOC's Federal Employees Appeals Programs, about 30 percent of the appeals resolved by the Office of Federal Operations since FY 2010 included harassment allegations. So clearly, as several folks have already stated, there is a need for some new thinking and some new actions about best practices and this meeting will be a start of that process.
At the same time, EEOC is acting now to target its harassment outreach and systemic enforcement under our plan. In FY '14, EEOC staff trained or spoke to -- listen to this -- approximately 49,000 people about harassment. That's a lot of people, employers and employees at 836 events nationwide. For example, folks from our Charlotte office trained the staff of a children's medical clinic about harassment. Staff from our Atlanta office trained hotel and restaurant managers and supervisors who worked at an array of hotels and restaurants around the country for one ownership group.
The EEOC also has had successes in litigation and these cases clearly put a face on some of the numbers that I've been reciting, and I'm only going to cite a few of them. But in March 2012, EEOC settled a disability case alleging that an office worker who had recently disclosed a psychiatric diagnosis to managers was subjected to epithets like pill-popper and psycho and was later fired while on medical leave. This EEOC settlement, in addition to money, implemented best practices for the employer regarding preventing harassment and also for reasonable accommodation of disabilities.
Last month, December 2014, EEOC settled a case with an airport fueling company alleging that managers routinely referred to fuelers who were from African countries, including Sudan, Nigeria, Ghana and Sierra Leone, by using animal imagery. A manager also taunted these workers by talking about working conditions during American slavery. Some of the Commission's harassment cases involve vulnerable workers. January 2013 settlement, EEOC settled a sexual harassment case on behalf of women fast food workers, including many teenage girls. These women alleged obscene comments, unwanted touching, strip searches and rape. Plus, they were retaliated against for complaining.
In another sexual harassment settlement on behalf of a vulnerable worker, in May 2013 EEOC resolved a lawsuit alleging that a supervisor at a Washington state egg farm demanded sexual favors from a woman agricultural worker who worked in isolated circumstances in order to keep her job for over seven years. Again, there was retaliation.
So despite these litigation successes, and successes they are, the need for progress is obviously clear and the goal is to prevent harassment. Now, in my written testimony I summarize some best practices for preventing and responding to harassment that the Commission has put out already. But today in my spoken testimony I'm going to totally defer to our experts from the real world to hear what they have to say.
Right now, I want to conclude by flagging two developing legal issues: sex harassment and interpretation of the Vance decision. Sex harassment is more than only sexual harassment. It also includes conduct that denigrates members of a particular sex or is based on the perception that an individual does not conform to culturally-created gender norms.
In a federal sector appeal, as most of you know, the Commission held that discrimination against an individual because that person is transgender, also known as gender identity discrimination, is discrimination that violates Title VII. Additionally, in the Commission's amicus brief in 2014 in the Seventh Circuit case of Muhammad v. Caterpillar, the Commission took the position that intentional discrimination, which includes harassment, based on an individual's sexual orientation can be proved to be grounded in sex-based norms, preferences, expectations or stereotypes and therefore be in violation of Title VII.
With respect to the Vance decision, as we all know the Supreme Court held in Vance that an individual is a supervisor for purposes of employer of vicarious liability for their harassing conduct if she is empowered to undertake tangible employment actions against the victim of the harassment. Tangible employment actions hinge on the ability to, as the Court said, affect a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits.
The Court noted that this ability may in some circumstances be delegated to other workers, "who actually interact with the affected employee." For non-supervisors, a negligence standard applies. Negligence may be proven with, "evidence that an employer did not monitor the workplace, did not respond to complaints, did not provide a system for registering complaints or effectively discouraged complaints from being filed in the first place."
In sum, there are at least three Vance issues to discuss: the scope of tangible employment action, delegated decision-making and being a supervisor and the negligence standard for harassment by non-supervisors.
With that, I will conclude. Thank you for the opportunity to testify.
CHAIR YANG: Thank you Ms. Miaskoff. We'd like to turn now to our General Counsel, David Lopez. We are very pleased to have you here with us and also reconfirmed for a second term. Thanks so much David.
MR. LOPEZ: Thank you. Let me start out with the bad news. In a recent case brought nearly 50 years after the passage of the Civil Rights Act of 1964, a case involving truck drivers working in North Carolina, the EEOC presented witness testimony of a work environment permeated with racial harassment and discrimination. The testimony included the pervasive use of comments and slurs including the N-word, monkey and boy.
One of our charging parties testified that on one occasion he was approached by a coworker with the news and was told, "This is for you. Do you want to hang from the family tree?" The witness also testified that he was asked by white employees if he wanted to be the, "coon" in their coon hunt. That's the bad news.
Here's the good news. It took a jury in Winston-Salem, North Carolina less than an hour to render a verdict for the Plaintiffs, for the EEOC, including significant damages and punitive damages. The Court then issued a very strong order for injunctive relief. The Fourth Circuit recently upheld both decisions.
Over the past couple of years, we have also won a verdict in a similar case in San Antonio, Texas involving overt racial harassment. But our racial harassment cases don't only involve the trials. They involve many big systemic settlements including an $11 million settlement out of Chicago involving a trucking company that also involved broad, non-monetary relief.
I start my comments by focusing on racial discrimination because last year we celebrated the 50th anniversary of the Civil Rights Act of 1964, which, as we all know, was motivated and prompted by the desire in large part to cast off racial segregation in the South. As we look for ways to root out discrimination in its systemic and subtle forms, the persistence of overt racial harassment is a stark reminder that we have a lot of work to do still. Of course, we see the frustrating persistence of these harassment cases not only involving race but also sex, national origin, religion and disability.
I think I may have been one of the people who told you, Commissioner Lipnic, that if we wanted to prosecute sexual harassment cases 24/7, we could have. And I'm proud of the work that the Commission has done in the area of sexual harassment. We continue to file cases in a broad range of industries, professional jobs, private service sector jobs, blue collar jobs. I am proud of the leadership the Agency has demonstrated in particular in the area of addressing sexual harassment amongst vulnerable workers and immigrant communities. I thank you for your leadership and I thank the National Woman's Law Center also for the work that they've done in terms of highlighting this enormous problem.
And I would actually, you know, refer everyone to the PBS documentary Rape in the Fields, which I think highlights the work that the Agency has done in this area. As someone who litigated in the field and litigated many harassment cases, including sexual harassment cases, these are some of the most harrowing and difficult cases to bring and a challenge is always trying to create a safe space for people to come forward. And there's always a recognition that sexual harassment is underreported and that there are many individuals who are afraid to come forward and that becomes a challenge for us as a law enforcement Agency.
I'm not going to go over the statistics because Carol talked about the statistics in terms of the litigation. But I am proud that the Commission has made systemic harassment a Commission priority. I am very frustrated by the continued persistence of these cases and we really do need to double down and look for an effective way to use outreach and public education to root out harassment in the workplace. As the chief litigator, as the sheriff, I strongly support the public education efforts and along with my attorneys in the field have been very involved at the front end in terms of public education and outreach to try to address these issues.
I recognize that litigation is the last resort. I recognize that these cases do not reflect the vast majority of employers and that most employers are trying to do the right thing. Still, as these cases illustrate, we have a lot of work to do. These cases function as cautionary tales. These cases educate employers about their responsibilities and employees about their rights. And most importantly, our hope is that these cases will help deter discrimination and deter future conduct.
One of the cases that illustrates the challenges and the importance of enforcement is a recent resolution by our Denver Field Office, our Phoenix District Office of a case involving a well servicing company in Wyoming, a beautiful state but the allegations are ugly, as you will hear.
We are privileged today to be joined by Laudente Montoya. Mr. Montoya, thank you for making the trip and thank you for speaking out -- and by Sean Ratliff, the Acting Supervisor Trial Attorney and a former colleague from the Phoenix District Office, who took the lead in litigating the case. Sean will tell you about the case and Mr. Montoya will tell you about his experience. So I will turn it over to Sean Ratliff.
CHAIR YANG: Microphone.
MR. RATLIFF: Oh, thank you. Sorry about that. Once again, thank you for inviting me to talk about the case I helped to litigate last year against Dart Energy, Beckman Production Services and J&R Well Services. It settled last November for $1.2 million and a three-year consent decree. I'm told that's the largest EEOC settlement we've ever had in Wyoming. So I'm very proud of that. And again, thank you for having me.
A little background on the case. It originated out of more than a dozen charges that were filed in late 2009 and 2010. They were filed with the Wyoming FEPA, were eventually transferred to the Denver Field Office where we continued to investigate, ultimately found cause in 2012 and initiated the lawsuit at the end of 2013. The 11 charging parties in the case were -- had varying degrees of African-American, Native American and Hispanic ancestry. Their allegations were predominately harassment but also included pay inequalities, terminations, constructive discharge and retaliation.
Ultimately when we got to litigation, there were 17 aggrieved individuals involved in the lawsuit. They really had different jobs. Some of them were truck drivers. Some of them were mechanics and the remainder were rig workers. So, and they worked at various times as well. Some of them were as early as 2005 and we had people who worked as late as 2014. Despite these differences in their jobs and when they worked, they all told a very similar story and that was that derogatory comments and so-called jokes about their race or their national origin were just common and, you know, complaints to management were either swept under the rug, ignored or in some instances, like Mr. Montoya's after he filed his charge, these people suffered severe retaliation. He was let go.
So I'm not going to -- I don't want to go into the details of all of the harassment. It's in my written testimony. I think Mr. Montoya's going to talk about that. Suffice it to say that the men's story paint a picture of a workplace where racial harassment was widespread. It was longstanding and it was egregious and it was made worse I think by the fact that these were really dangerous jobs. You know, as one of our guys put it, you know, your life was in the hands of people who were judging you based on the color of your skin. So that was very difficult.
I'd like to talk a little bit more about kind of what we can take away from the Dart case and first of all I think the underlying problem is obviously just that there is prejudice and racism still in this world. And what we can do about that, I mean it's very hard for me as a trial attorney to say. I think that having meetings like this is very important. I think that any kind of publicity that we can give to this issue is very important. I think the outreach we're doing with vulnerable populations is really important. And as a former school teacher, I think we could be doing more with kids in schools, I mean, hitting these people early when they're still very ideological and they haven't sort of been ingrained with, you know, prejudice. So I think that's important.
I think obviously employers have to hold their employees accountable. You know, Archie Bunker might have been amusing in a 1970s sitcom, but you know, in the 2015 workplace, you know, you just can't allow people like that to continue behaving in a way that denigrates, you know, racial minorities. And if an employer is not going to take the initiative to discipline the Archie Bunkers of the world, I think the EEOC and the private bar need to step up and do that. Unfortunately, I think in places like Wyoming where there isn't a robust plaintiff's bar, it's that much more important for the Commission to step in and fill that void.
Litigation and monitoring, in my experience, can make a difference. I think we also need to as a Commission look at certain industries, in particular, you know, the oil and gas industry we've seen a lot of problems with and any industry where employees are supposed to act tough, where they're rough, where it's like, oh, you're supposed to be able to handle this, you know, we're tough guys here. I think these are places we can focus. A roughneck no more than a school teacher deserves to come to work and not be called the N word or a wetback or whatever other derogatory term you can come up with.
The Commission's targeted relief that we seek in our consent decrees I think is very important and I think there's a lot of things that we've incorporated into our consent decrees that employers could themselves voluntarily incorporate that would help prevent these kinds of things. In the Dart case, for example, we found that there was little or no training at all until these guys filed charges on race harassment or sexual harassment or anything for that matter. So we built into the decree training for not only line employees but management and human resources.
Another issue we saw in Dart was this expectation that things be handled locally, that you're never supposed to go over somebody's head. To combat that, we instituted as part of the decree a hotline. That hotline number's being posted in the main office as well as in the trailers out in the field so that people know that there's a place that they can call. We built into it an annual survey so they'll be asking employees each year anonymously to report whether or not they've seen any forms of harassment. I think these 1-800 numbers, surveys, they're inexpensive, easy ways employers can kind of keep track of whether or not there's problems happening in their workplace.
I'll mention one other thing because I know we're sort of short here. We built into the decree a system whereby Dart and J&R would evaluate their management and compensate their management on EEO compliance as well as, you know, their bottom line because I think managers just need to know that it's just as important to treat your employees with respect as it is to get a profit. And again, I think that's an easy way that employers can show their management that EEO compliance is just as important as anything else.
So you know, time will tell whether or not all of these things make a different in J&R. We just settled last fall. I'm hopeful that it will. I know that we made a difference in 17 men's lives, hopefully in the lives of future employees at J&R. I would like to give credit to all the people that worked on the case. I won't mention them all. But most of all, I want to give credit to the men who stood up for themselves. We wouldn't have had this case if they wouldn't have come forward. So I really want to thank Laudente Montoya and all of the other guys in the litigation for coming forward and thank you all for having me here today.
CHAIR YANG: Thank you Mr. Ratliff. Mr. Montoya?
MR. MONTOYA: Good morning. I want to thank the Commission for allowing me to be here and I'm excited to be here. My name is Laudente Montoya. I am one of the people who filed charges of discrimination against J&R Well Services and Dart Energy for harassment that I suffered at the workplace.
I started working at J&R as a mechanic in November of 2007. My first day on the job, my very first experience, we had a morning meeting and I was referred to and introduced as "Uncle Beaner". My nephew, my girlfriend's nephew, he was my nephew, was referred to as "Beaner". So naturally they referred to me as "Uncle Beaner". So that was my very first experience moving into Wyoming.
Mike Brasiel, who was another one of the Plaintiffs in the case, was my nephew. He had worked there before me and he was referred to as "Beaner", as I mentioned. We were both Hispanic. Mike was half Hispanic so at times he was referred to as "half a Beaner". Living and coming from Albuquerque New Mexico for 40 years and living in Denver for 10 years, I was never treated this way. I mean, there was such an array of population in both places that this just didn't happen. Well, the gentleman that referred to us -- with these remarks wasn't only referring to us. I mean, there were -- he called people "stupid Mexican", "dumb Mexican", "worthless Mexicans". Sometimes he would switch up and call us "spicks". He told me at least once that he really didn't like spicks and then Mexicans were the reason that the swine flu came to the United States.
If Mike and I spoke Spanish on the job, we were also told that, "This is America. You're not supposed to speak that language here. We're Americans." He'd also say stupid things like, "Hey, we're going for lunch now. Do you have any pesos?" Things like that were things that were common every day at the workplace. I told the truck pusher I didn't like the language. He was a manager. I told him at times that a person in management position shouldn't really talk to their employees in that manner. I also mentioned to him, and actually he would refer back to me and say, "Well, welcome to the oil field. That's the way we speak out here. Get used to it."
Later, when I told him I didn't like the term "spick", he'd turn around a couple days later and mock me by saying, "Hey, he doesn't like being called a stupid spick." Usually he would just kind of laugh it off and just move along. It wasn't just the Hispanic guys. It was Native Americans and anybody else, people of color that his first comment when a new employee would come is to ask them, "What are you," referring to their national origin. And there was several guys. I heard him call one in particular gentleman a nigger right to his face.
Don Longtine, another one of the Plaintiffs, called him "lazy Indian", a "wagon burner". These were daily occurrences. We would complain to our supervisor. Don was my supervisor directly and it was -- we were supposed to take the chain of command, so regularly complained to him. He would take that up to the area manager who was his boss and it would get swept under the rug. The management team was -- they were close friends.
Well, working that job was one of the worst times of my life. It was hard to go to work daily. A lot of health problems came up over these issues. Couldn't sleep at night and to this day I still have those problems, can't sleep at night. I even saw a doctor about it at times. A bunch of the other guys and I, we were fed up with the racism. We filed charges of discrimination with the help of a lawyer that Don Longtine knew and Mike Brasiel actually made the initial call. A week or two later, the area manager called me into his office and said that work was slowing down and that they were going to have to lay me off. And I know for a fact there was enough work there because I asked everybody in the area, my supervisor directly above me if there was enough work to do out there and there was plenty he said.
So then I had to go to the unemployment department and I had to file for unemployment. It was a little harder to find a job at that time. That was the time when the market was down. In the meantime, Mike Brasiel got hurt and they contested his worker's compensation claim. That was just how they were. The truck pusher was the worst though. He acted as if nothing could touch him. A couple of months ago when this case was in mediation, we all agreed to end it together. Now that it's over, I'm proud that we stood up for ourselves. I'm glad EEOC was able to help get things like the training and the survey as part of the settlement and I want to thank the Commission for letting me come to Washington and tell my story. I really appreciate it and I'm excited about it. And I really, really do hope this helps. Thank you.
CHAIR YANG: Thank you so much, Mr. Montoya. Ms. Wise?
MS. WISE: Thank you. Chair Yang, distinguished Commissioners, thank you so much for inviting me to testify about this critically important issue. And Commissioner Feldblum, you asked us to think about if we had a daughter, how would we react to some of the facts of the cases. I have three daughters and boiling mad does not begin to describe how I would react to some of the cases that I've seen in my 30 years of practice.
I'm also testifying today as an active volunteer of SHRM, the Society for Human Resource Management. SHRM is the world's largest human resource membership organization with over 275,000 members worldwide and we have chapters in over 160 countries in the world. SHRM also focuses resources on helping employers avoid and eliminate harassment in the workplace, providing research, benchmarking, data and training. And I think several of the Commissioners noted that most employers do want to prevent and eliminate harassment in the workplace. So very happy today that these hearings are taking place.
There are three main ways I think that employers can eliminate and prevent harassment in the workplace. First and foremost is training and I think that's the single best way to eliminate harassment. But the training has to be effective. SHRM conducted a study in 2010 and in that survey respondents -- 82 percent of the respondents indicated that they required all employees to attend training and for training to be effective, all employees do have to be part of the training and that training has to go from the lowest to the highest levels.
I think CEOs have to be part of the training. I think they have to participate in the training and they have to communicate to all levels the importance of the training. And I think that does include their participation. Perhaps the training needs to be segmented. That depends on the workplace. Generally supervisors and managers need separate training. Their responsibilities are greater. They need to understand the implications of retaliation, their responsibilities in that regard. So depending again on the workplace but generally supervisors and managers need specific training for their roles.
But the training has to be throughout the organization. It also has to be repeated and regular. I think training has to occur at a minimum on an annual basis. But also I would say for supervisors and managers they need more regular refreshers. I don't understand why employers don't conduct more regular kind of refreshers. They don't need to do full-blown, you know, full training all the time. But why not at every staff meeting, at every quarterly sales meeting, why not take 10 minutes, talk about some aspect of a policy on harassment? Use some examples. Use some recent case that's been in the news. Make it an item, a topic that gets visited regularly. Talk about these cases that we've been talking about and use that as an example. Make it a topic that is constantly revisited so that people learn. Employers do want to eliminate harassment. But often people don't really understand what that is. I mean, the examples that Mr. Montoya shared, why not share those examples? Why do we just assume that people know that that's inappropriate? It seems very obvious to all of us. But why not share that, share that example as something clearly to avoid?
One of my favorite cases involved a supervisor in a bank who had attended training the week prior to an incident where he was leaving the bank one day for lunch. He walked by an empty office. The light was out. The door was open and he heard a woman crying. He stopped to see what was wrong and she didn't want to share with him what she was crying about. But he knew enough. He could tell it had something to do with her supervisor. So he knew enough from the training to say to her, all right, you don't have to share with me. I'm leaving for the day. But in the morning, I'm going to human resources and I'm going to say to them that you have a problem and that I've asked you to come to them. And if you haven't done that, I'm going to ask them to follow up.
Well, that for whatever reason encouraged her to go to human resources and to share that she had been harassed by her own supervisor for months and no one had any idea. And so, at that point, the bank was able to address the harassment. Her supervisor never set foot in the bank from that day forward and they were able to investigate, take care of the problem and eliminate the harassment. The supervisor who discovered her in the office, I don't know. He couldn't have conducted an investigation I don't think. He wasn't an expert in harassment. But because of the training, he knew enough that that situation had to be immediately addressed.
And that's what our supervisors deserve. They deserve to understand the seriousness of a problem and that there needs to be some immediate reaction and he was able to do that because of the training. Fortunately, it had happened the week before. So that frequent refresher, that training, that's what supervisors need and that's what employers need to be doing. Harassment training also we talk a lot about sex and sexual harassment. That's what most people are more aware of. As we all know, there can be harassment on so many different bases and that needs to be included in the training. There's less awareness of those other protected categories and characteristics. So that needs to be addressed as well.
The second thing that employers can do and need to do and we've talked about this from Faragher and Ellerth, is to have a policy. And the policy too can't just be a properly written policy on paper. It needs to be a policy that works, a policy that actually means something to employees and that is followed. One of the first and most important elements of a policy is choosing the person or the people to whom employees should report. That decision for an employer is so critical. Who are those people? It can't be one person, for obvious reasons. One person is not enough. The person might not be there. The person might be accused of harassment or might be closely aligned. Mr. Montoya talked about management being close friends. So we need more than one person. But how many people do we need and who are the appropriate people? That's what we need to figure out because those people have to know what to do.
I worry when I see a policy or when an employer tells me, well, let's say that all supervisors are appropriate because frankly all supervisors are not appropriate to handle complaints of harassment. So who is the employer willing and able to properly train? So that designation is critical. And then, the policy needs to be clear that the employer will not tolerate retaliation, not for the person complaining, not for the people involved in the investigation, witnesses, potential witnesses and not for the accused. There can be no retaliation against anyone in the process and that needs to be part of the policy as well.
So that policy needs to be of course properly written but properly implemented. It needs to serve everyone involved in the process. And again, this policy needs to be discussed. It needs to be in front of the employees all the time, not just disseminated once a year or even less to everyone. But it needs to be current. It needs to be in front of the employees. And then, finally, effective investigations. And again, who will conduct investigations, deciding who will conduct the investigations, again a very important decision for employers. This needs to be someone who can do that, maybe someone internal, maybe external, depends on the situation. The more senior the person is who's accused of harassment, the more critical that decision is. But the person needs to be very well trained to avoid liability for the employer but also the goal here again, eliminate harassment,. And sometimes that means stopping it immediately. Sometimes an accused has to be taken out of the workforce immediately before the conclusion of the investigation. So we need people who are empowered and who have the authority to do that when it's necessary.
Employers I do believe -- and several of the Commissioners pointed out -- employers don't want harassment in the workplace. It's not good business. They don't want it and many -- I would say most employers, they do want to do the right thing. And so, I think employers would welcome collaboration in the workplace. And again, Commissioner Feldblum, you talked about the strong sheriff in town. I think I would say my clients would agree. You have good enforcement.
But we'd like to partner. I think employers would like to partner with the EEOC and that strong sheriff and we do want to eliminate that. I think small employers in particular would really value more training and the talk about the training, more of that, more access to that would be very helpful, sample policies, small employers would really appreciate that. And then even large employers I think just to dialogue, to talk about shared goals, issues, issues that they face, issues that you see.
In preparing for this hearing, I talked with my clients and the smaller employers I kind of expected that they would maybe welcome some collaboration. But even my larger employer clients, I have a global manufacturer. They have 140 locations in the world. And they said that they would appreciate, you know, knowing what are the shared issues. I have an amusement park operator. They have 19 parks in the country and they said that they would love, you know, to have the dialogue.
And SHRM too, SHRM obviously access to human resources professionals, they really could get resources out and into the hands of people who could make a difference. So I think that more collaboration and more ways that we can work together with employers. So yes, I would agree your enforcement efforts are excellent. But the more that we can collaborate, the more that I think employers would really appreciate that and the more we can do to eliminate harassment in the workplace. Thank you for this opportunity.
CHAIR YANG: Thank you Ms. Wise. Ms. Goss Graves?
MS. GOSS GRAVES: Thank you, Chair Yang, and to all of the Commissioners for inviting me to testify here today on behalf of the National Women's Law Center and for taking on an issue of such profound importance. Sexual harassment, as everyone has said, remains a persistent problem. A number of surveys have shown that one in four women say that they've experienced sexual harassment in the workplace. But other surveys also show that 70 percent of those women say that they would not report it. And women who do report harassment experience all sorts of retaliation and I'm going to give some examples as I'm talking today. But when you put all of that together, I think that background is helpful in thinking about the role of the EEOC in its public education and partnerships with employers.
I'm going to talk a little bit about harassment in the low wage workforce in particular and then I'm also going to talk about the nature of harassment in higher pay jobs where women make up small parts of the population.
There are about 20 million workers in low wage jobs and two-thirds of those are women. And if you think about what those jobs look like, those are jobs where there's not a lot of bargaining power generally. They are jobs where on a number -- for a number of reasons women say that they fear retaliation. But low wage workers in particular, some of the workers who can least afford to be thrown off the job because they complain of harassment or because they're dealing with retaliation. This is especially true given that women are now 41 percent of bread-winners for their households. And for lower income women, they make up a higher share of bread-winners.
A lot of low wage jobs also involve as a matter of course, having to please third parties that aren't in your workplace. If you think about jobs in retail, jobs in restaurants, jobs in hospitality, third party interactions and needing to please them is a key component. The Restaurant Opportunity Center United, ROC, has put out a really recent report that details information it received from surveying its own members, and I just want to highlight a few of the things that they note here.
They talked about that the very highest rates of sexual harassment were in states that had a tip minimum wage of $2.13 an hour. So workers there are more reliant on tips. They also talked about how their workers said that sexual harassment on the job was an accepted part of the culture. It was expected on the job.
And 60 percent of women and transgendered restaurant workers reported that sexual harassment was an uncomfortable aspect of their life and that it was occurring -- about half said that it was occurring on about a weekly basis. They said that this harassment came from managers, that it came from coworkers and that it came from customers. In fact 78 percent said that it came from customers. And yet, a full majority of the workers that they surveyed said that they never report the harassment that they suffered because of retaliation.
In other low wage fields, and you know, I was glad that Commissioner Barker brought up farm workers and the sort of harassment that they face. And there've been a number of really important reports that highlight that harassment. You know, one report out that looked at harassment in Central California in particular and that women were suffering from harassment at very high rates. Eighty percent in that report said that they experienced harassment on the job and that they also feared retaliation when they reported it and that seeking justice from retaliation could mean anything from further harassment to risking their livelihoods to feeling as if you're putting your whole family at risk to risking deportation or all sorts of things related to that.
If we look at higher pay jobs in nontraditional fields like construction or extraction, women still make up a really tiny percentage of those fields in construction and extraction. They make up only 2.6 percent, a number that's been relatively unchanged over the last 30 years. So these are workers who have very few or in some cases no female colleagues on their particular job and a study by the Department of Labor found that 88 percent of women in construction said that they experienced harassment on the job.
And when you think about a job in places like construction and extraction that complaining -- what retaliation may look like if their jobs were, that inherently come with some risk of physical injury, which leads me to talk about some of the reports that have been written about women in policing, in law enforcement and women in firefighting. For law enforcement, anywhere from 60 to 70 percent of women police officers say that they experience harassment but only 4 to 6 percent said that they would report it. And for them, some have reported retaliation as being potentially lethal. Some reported that they stopped receiving backup in dangerous situations after reporting harassment. Others left the force entirely.
In firefighting, more than half of the nation's fire departments have never employed a woman firefighter. And when you think about for those that again are in that workforce, 84 percent of women firefighters say that they experience sex discrimination on the job including harassment. And again, similar to law enforcement, for those that have reported, they too have said they faced potentially lethal retaliatory conduct. One example was a male coworker shutting off water supply when fighting a fire.
So all of that is just to paint a little bit of a picture of some of the data that has come out over the last five to 10 years that really to me highlight one strategy for the EEOC potentially and that is taking a sectoral approach, both in its outreach and education but also in its enforcement and really having a full understanding of the EEOC harassment charge data about where it's coming from. I think that ROC's work has really highlighted the number of charges that the EEOC gets around restaurants in particular. I would be really interested to see regular data on some other sectors where some of these private reports and surveys have indicated a problem.
And I know my time is up but I just want to point out two additional things, if you'll give me that. The first thing, I was really pleased to see flagging the issues following the Vance v. Ball State decision. I think that's a critical thing to look at. Those three areas are the ones that our review of the case law has demonstrated that there's some inconsistent things going on in the courts and I think therefore a real need for the EEOC to speak to that issue.
And the last thing is, and this is just an idea that occurred to me this morning, but now that there's this task force, which I'm very excited about, it calls to mind that there's a lot of learning that can happen from the task force that the administration has on sexual assault on campuses. There was a lot of work that they did leading up to the task force recommendations, engaging stakeholders, working with survivors, working with people who were experts in the field on dealing with victims, working with college campuses to think about what they need.
And the website, NotAlone.gov, if people haven't seen it, they should take a look because it's extremely accessible. There is so much really user-friendly tools that you could just pull down. And so, if you were a university that sort of said, I want to get my house in order, there was a starting place to go. And I can imagine that there could be some shared learning from what's already happened. So thank you so much for inviting me today and for the opportunity. I look forward to any additional questions.
CHAIR YANG: Thank you Ms. Goss Graves. And now, Jane Kow.
MS. KOW: Can you hear me? Thank you. Good morning, Chair Yang and distinguished Commissioners. I'm Jane Kow and I have been practicing employment law for over 20 years. And I am the founder and principal of HR Law Consultants, a San Francisco-based employment law advice, HR consulting, workplace training and investigations firm. I'm delighted to be here today to participate in this very important topic.
I want to focus my testimony today on three key areas that may warrant the EEOC's attention as it plans for future employer training and potential guidance for employers and these include workplace harassment that is occurring in social media, blogs, text messaging and secondly, preventing harassment against employees with disabilities. Third, training employers on how to conduct effective workplace investigations.
As the Commissioners noted this morning, it's been a half century since the passage of Title VII of the 1964 Civil Rights Act and today employers are grappling with how do we apply workplace harassment laws of the old millennia to what is actually happening today, how employees are communicating with one another using social media, blogs and text messages. No longer are employees gathered around the water cooler and gossiping about coworkers. But they are taking their concerns and tormenting coworkers on Facebook.
And indeed, studies show that 90 percent of all businesses now use social media for business-related purposes. Sixty-four percent have policies in place that safeguard against harassment and yet 70 percent report that they have taken disciplinary action for misconduct using social media. So we know that having a policy alone isn't sufficient. What's important is what the employer does with that policy and what actions they take. The proliferation of images and messages on social media, text messages, blogs today posted by employees at the 11th hour right before bed in 140 characters or less without any aforethought often is spawning complaints of harassment, violations of people's rights to privacy, defamation and so forth.
And this has resulted in a number of headline-grabbing settlements and damage awards where the employer has failed to take appropriate corrective action. For example, a few years ago -- a couple of years ago the EEOC obtained a settlement from national retailer Fry's after an assistant store manager sent sexually harassing text messages to an underage sales associate. After she asked him to stop, she then reported it to her supervisor who reported it to the legal department. The employer not only failed to investigate but took no action against the assistant store manager. Instead, they fired the victim and the supervisor and the result was a $2.3 million settlement and one of the highest I believe that the EEOC has ever obtained on a per claimant basis.
In another case, an employee with a disability was taunted and threatened with bodily harm. He had one hand with no fingers or thumb and coworkers posted degrading, physically threatening messages about his so-called claw hand on a blog that filled 220 pages. And this went on for months and was posted using work computers and there were also comments that were made offline. He was taunted and threatened with bodily harm. This went up the chain of command to upper management. It was brought to HR's attention. No investigation was ever conducted. And even though they had a list of potential culprits who were engaging in this conduct because they knew that it came from work computers. And based on the employer's failure to take appropriate corrective action, the jury awarded $820,000 and this was upheld on appeal based on a clear evidence that this was targeting the employee based on his disability.
In other cases where the employer has taken prompt effective corrective action, there was no finding of liability. There was another case involving a travel agency where one employee took a picture of three employees, posted it on Facebook. The employee made a reference to her own skin color and a coworker made a racially derogatory remark and that was posted beneath the photo on Facebook. And as soon as the employee complained about this incident and two other that did not occur in social media, the employer immediately investigated and blocked everyone's access to Facebook from work computers and ultimately escaped liability.
So there are things that the employer can do using -- to prevent harassment in these -- in social media. But I think the question here is, would something like this even be feasible if the company was a social media company. I hail from San Francisco, the birthplace of social media. And you know, if the company relies on social media to generate brand awareness, to attract customers for their products and services, are these corrective measures going to really work?
And what about, you know, if the employee isn't using work computers but they're using their personal devices. What control would the employer have then? So these are some open questions that I believe the EEOC could step in and provide some guidance where the courts have not yet addressed the issue.
The other thing I want to talk about is disability harassment. Disability discrimination harassment claims have really spiked in the last decade. Some studies show that in California there's been a 75 percent increase in such claims, a near doubling of settlement dollars collected by the EEOC in the last five years alone. So the amount, the number of claims and the amount of money that's being collected is staggering. And when these cases actually go to trial, they garner significantly higher jury awards than in other areas.
The cases, some of them which are cited in my written testimony, reflect not only degrading comments inflicted on the victims, slurs and the like, but active efforts on the part of coworkers and supervisors to take advantage of the fact that the employee has a disability, whether that's physical or mental, by forcing the employee to perform work that is beyond their work limitations, so they further exacerbate a prior injury, and refusing to provide a reasonable accommodation by refusing to communicate with a deaf employee in writing or providing a sign language interpreter, so combined with name-calling and ostracizing the employee from others.
I believe that the path to prevention, harassment prevention in these scenarios is through training, not training alone but it's a very important component. Practical, easy to follow, step by step training on employees' rights to a reasonable accommodation and employers' obligations to provide those accommodations. In much the same way that states like California mandate two hours of sexual harassment prevention training once every two years, this can be an important topic to be included in the training.
It's important to think of this area as the employer has an additional obligation where employees complain of disability-based harassment. After such a claim is raised to the employer's attention, not only must the employer take corrective action, investigate and discipline the offenders, but it must then provide reasonable accommodations because it's aware that somebody has a medical condition or a disability that warrants accommodations.
So there is an additional step once the harassment claim is dealt with and the training should occur at all levels of the organization. Managers need to understand that an employee has a legal right to a reasonable accommodation and the steps that they must take to engage in the interactive process once they're aware that an employee has a medical condition. Coworkers have to be trained to understand what constitutes unlawful harassment of a person with a medical condition, whether it's physical or mental and also to prevent harassment when an employee requests an accommodation or is provided with one, so they don't -- think of this as favoritism or special treatment because they're allowed flexible work times or they're given special equipment or a chair, that there isn't this resentment of the employee, that somehow they're being treated differently. So the key in this area is instilling and understanding that not only must the employer take steps to prevent harassment of employees with disabilities but it must also provide reasonable accommodations for an employee with a medical condition or a disability.
Finally, I just want to spend a minute, because I know my time is up, on workplace investigations and the kind of focused training that I believe HR and EEO professionals need in this particular area. Employers should receive training on when their duty to investigate is triggered, when the employee does not use magic words such as this is a hostile work environment, I feel like I'm being sexually harassed but someone makes me feel uncomfortable and I don't want to work too closely with him and I'm afraid to speak up because I don't want to be called a snitch.
These would trigger normally an employer's duty to investigate. What constitutes an effective investigation? How is that defined by law? Not what they think is enough but how many people need to be interviewed, what kinds of documents need to be reviewed, whether the employer can ask parties and witnesses to maintain confidentiality over the process in view of recent NLRB decisions, when employees can be disciplined for failure to cooperate in an investigation, if the alleged harasser or witnesses refuse to participate and what happens if the investigation uncovers evidence of a mixed motive, if there are legitimate non-discriminatory business reasons for disciplinary action, but it also appears that the employee is being singled out because of his or her protected characteristic, that he or she is being held to a higher standard or being subjected to extra scrutiny whereas others who commit the same infractions are not being subjected to disciplinary action.
Finally, how to clearly document the findings and prepare a summary report after the investigation. So in closing, I just want to say that as the Commission moves forward to focus on education and outreach to the employer community, I hope it will incorporate some of these areas in future guidances and also keeping in mind the shifting demographics of the workplace and how it might present the information in very easy to follow, easily downloadable onto personal devices, step-by-step instructions and personal devices that have become largely ubiquitous in the workplace of the millennial generation. Thank you.
CHAIR YANG: Thank you so much, Ms. Kow. Now, we're going to have an opportunity for each of the Commissioners to ask any questions or make statements. We'll have about five minutes each, and I know we are running a little bit behind. So we'll try to stay on track for that. I thank you all for your incredibly valuable testimony. I've really learned a lot just from listening to you today and reading your testimony online.
I wanted to start with a question for Mr. Montoya. I wanted to thank you for the courage that you had to come forward and report the discrimination. And I wanted to ask how did you decide to come forward, you know, and how was your experience with the process because we know for every individual like yourself who is willing to come forward, there are so many others who are not because they are afraid of retaliation or concerned about what may happen or what may not happen if they come forward.
So I wanted to start with you and then I was going to turn to our outside witnesses and ask you for your views on what are some of the key reasons why employees may not want to come forward to report discrimination and what can employers do to create some security and a safe space for employees to encourage them to come forward.
And Mr. Montoya?
MR. MONTOYA: Originally we came forth, there were three original people that did it: Don Longtine, Mike Brasiel and myself. We all worked as mechanics together. The three of us were in the shop at all times together. We probably got the brunt of everything because all of the supervisors would gather in the shop area that we were in. So we talked about it amongst ourselves and just made a decision to do something like that. We were actually taunted to make a decision. We complained and were told, well, why don't you guys just step up and do something about it. And we did. And the retaliation was pretty fierce.
I mean, I got laid off. Mike got hurt on the job and was ignored. His whole claim and everything was kicked out. They fought everything all the way down tooth and nail. Don Longtine was the last one of us three originals that was on the job and he lasted probably another year or so and had to -- had regular doctor's appointments for psychological problems and things that occurred directly because of what happened.
And that's basically what happened as far as coming forward. It was just a derived decision amongst the three originals and then we brought whoever else was interested in stepping up on with us. We called an attorney, a local attorney in Casper and started filing paperwork. And then, when Sean and the EEOC came on board, we were elated. That was a wonderful step for us.
CHAIR YANG: Thank you so much. I know that you've hoped to help others who are in similar situations and I do think your courage in coming forward will set that example. So thank you very much.
MR. MONTOYA: Thank you.
CHAIR YANG: Ms. Wise?
MS. WISE: I think Ms. Graves actually largely answered the question. People are in fear for their jobs. I was harassed as a young associate at a large law firm when I started my career and I didn't report it. I wanted to preserve my job. It's largely why I left the firm. But I think people want to keep their jobs. I'm not proud of that. But I think as you get to be a certain age, you wouldn't stand for that maybe. But starting your career, certainly. And until there are more people who share the experience and speak out, I think that it's largely fear.
CHAIR YANG: And are there things that employers can do to change that culture?
MS. WISE: I think there are a lot of things employers can do, that training, that constant talking about it, putting it out there, making it okay for people to speak out, sharing those examples, not making it an annual thing, you know, we have to do it every year so here we are doing it, but making it a constant communication, a constant conversation. It's okay to talk about it. Letting people know that when they do talk about it, it's handled. It's appropriate. It's no different than talking about a production problem or some other issue in the workplace.
CHAIR YANG: Thank you. Ms. Graves?
MS. GOSS GRAVES: I completely agree with the ideas raised by Ms. Wise. Additional thoughts include things like anonymous reporting opportunities and tip lines that may give an employer enough information to investigate a problem that may be more global. You know, also some sort of -- ensuring that training includes information around bystanders and the idea that if you see something that you should be speaking up, even if it's not directing to you and if there's some sort of anonymous way to do that.
The other thing, and I think Ms. Wise said this in her opening remarks is that people need to make sure they have places that they can report that aren't their supervisor. It may be that they can go to their supervisor. But it may very well be that they can't.
CHAIR YANG: Thank you very much. I know I'm out of time, but if I could just have one minute for Ms. Kow to answer that?
MS. KOW: You know, I think that there needs to be clearly identified protocols for complaining. There's a whole shift of moving to online training in the sexual harassment arena. But these online training programs don't identify who within the company must these concerns be raised. So the employees hit play two hours later, they're done. They check off that they've attended the training. But who within the company is charged with ultimate responsibility to ensure that concerns are addressed, investigated and remedial action can be taken. That has to be an important component of all content for sexual harassment training in particular.
CHAIR YANG: Thank you very much. Commissioner Barker?
COMMISSIONER BARKER: Thank you Madam Chair. I'd like to start by thanking everybody for your testimony. I've learned something from each of you. But Ms. Miaskoff -- Carol -- I was very surprised to hear in your testimony that -- and I'll read from the script. You said, "Harassment is the most commonly alleged issue in discrimination complaints filed by federal employees." And you also said that between 2011 and 2014, 30 percent of appeals resolved by the federal -- by OFO, Office of Federal Operations, involved harassment claims. Thirty percent of appeals, what -- how does that relate to -- if 30 percent of the appeals involved harassment, do we know how many allegations of harassment were filed by federal employees or typically are -- you know, are on an annual basis?
MS. MIASKOFF: The 30 percent of appeals, it's actually 30 percent of the resolved appeals, which is the way the Office of Federal Operations counts them. So they have I guess, you know, more certainty as to really what the issues are that are presented and that are material here. So that suggests that even more appeals are filed than that 30 percent resolved. I think in OFO's annual report, it talks about the numbers of federal sector complaints involving harassment filed. I don't have that number right in front of me. But that is where it's from and I could certainly get it for you.
COMMISSIONER BARKER: Okay, I appreciate that. And do you know how those numbers correlate to the private sector and state and local government? You know, are more -- it sounds to me from what you're saying that harassment allegations are --
MS. MIASKOFF: Right.
COMMISSIONER BARKER: -- more prevalent in the federal sector by federal employees than the private sector.
MS. MIASKOFF: Yeah, that's what I understand. It's my understanding that if it's the most common allegation in the federal sector, for the private sector, state and local employers, retaliation and race are numbers one and two. So yeah, there is a difference. And you know, I can only speculate really as to why that's -- there is that difference and I don't know for a fact. I have heard it discussed when I've gone to conferences with federal, you know, Agency attorneys to defend EEO and harassment matters. They talk about the prevalence of harassment allegations. But I can't really obviously draw a conclusion as to why.
COMMISSIONER BARKER: And I understand that's not your direct area, which raises an interesting point for me. I mean, we've talked about -- Commissioner Lipnic talked about how we could fill our docket with -- litigation docket with harassment cases. It sounds to me like we could also have an entire Commission hearing on harassment in the federal sector because there are close to 3 million, my understanding is, civilian federal employees.
So of -- you know, are there things we can do to provide more targeted prevention efforts to those 3 million approximately civilian federal employees and are there -- are there certain agencies or are there certain types of jobs, federal jobs that lend themselves to more instances of harassment?
MS. MIASKOFF: Absolutely.
COMMISSIONER BARKER: You know, I think it would be interesting, Madam Chair, for the co-chairs of the task force to address this issue and address whether we're doing as effective a job at prevention and training among the federal employees as we can. and Mr. Ratliff, I just had a question for you, and thank you so much for your testimony certainly, Mr. Montoya, your testimony. But I wanted to ask you, the company that you talked about that was the employer that you sued on Mr. Montoya's behalf, approximately how many employees did they have?
MR. RATLIFF: It depends on which one you're talking about. The sort of direct employer of Mr. Montoya had approximately a hundred employees. However, they were owned and we alleged integration of all three companies and so when you included, you know, the two parent companies, I think you were getting closer to 500.
COMMISSIONER BARKER: And my understanding is these are companies that contract with oil and gas companies to provide certain services to them?
MR. RATLIFF: That's correct. They're a well servicing company. So they don't actually own the oil field. There's the companies that own the oil fields. They come in to provide services, whether that's operating vacuum trucks or work-over rigs they're called on the actual facilities.
COMMISSIONER BARKER: And you make the comment in your written testimony that you thought that harassment was particularly prevalent in this industry, you know, the oil and gas services industry. I'm just curious, do you know whether or not after the lawsuit or in response to the allegation, if the Denver Office has done anything to like target providing preventative training within that industry?
MR. RATLIFF: I don't know at this point in time. I could certainly ask our outreach folks if that is the case. I just know that sort of from experience of working in the office, we have seen sort of repeated issues with the oil and gas industry in our district.
COMMISSIONER BARKER: And Madam Chair, I think that might be some of the benefit that comes out of this testimony too. If there are new industries that we're identifying where this -- or, you know, that Mr. Ratliff is identifying that he believes, you know, for whatever reason, whether work environment conditions or whatever, harassment is more apt to occur or there is inadequate training, that maybe we can look into more targeted training in our various offices and perhaps even, you know, in a particular year target a certain industry where we, you know, put the bulk of our training resources into that particular industry rather than just trying to provide blanket training.
And it does come as a real surprise to me, Mr. Ratliff, that according to your testimony you discovered that this company did not provide harassment training to supervisors because that is so very fundamental, that, you know, that tells me if they're not providing it to supervisors, then there's a huge gap there because that's one of the first things employers do is to provide specific training, regular training to the people that they entrust with supervision of other employees to make sure they understand the personal consequences to them if they break the law.
So that's really disappointing to hear and if it is something that occurs in this industry, as you have testified, then I think it warrants our looking deeply into that particular industry. My time is up. The only other thing I would mention is in Ms. Goss Graves -- Fatima -- I was interested in hearing your testimony about higher paid employees. And one of the things we did not have time to get into today that would be also interesting to explore is sexual harassment in the legal community and in the legal profession and in certain other, you know, highly paid or highly compensated professions. But I'm sure that both you and Ms. Kow have a lot of information on that that you could share with us. Thank you.
CHAIR YANG: Thank you Commissioner Barker. Commissioner Feldblum?
COMMISSIONER FELDBLUM: Thank you, Madam Chair. First of all, thank you, Ms. Miaskoff, not only for your testimony but for the work you do at Office of Legal Counsel and everyone else in Office of Legal Counsel. Not sure how we could do our work without the work that you do. I want to thank Ms. Wise and Ms. Goss Graves not only for your testimony but for the organizations that you're representing. Both SHRM and National Women's Law Center have done amazing stuff and have been there working on this. And Ms. Kow, again, not only thank you for your testimony but for all of your years of work representing folks.
I had -- well, the question, Mr. Montoya for you, exactly the Chair's question I had. What made folks finally come forward and do you think the employer focused on the leaders in terms of retaliation? I think you answered that. Your answer makes me think that maybe one of the things the task force could focus on is how do we maybe tell employees that a good first step would be to start talking to other people so that they could get some critical mass. But I'm not exactly sure how the Commission could convey that message. I wonder if you have any ideas about that.
MR. MONTOYA: Actually I really don't. I mean, everybody that's out in the oil field -- in the state of Wyoming, they have a law called the Right to Work law. And unfortunately, it's a little opposite of what it says. It's not actually the right to work. It's the right to fire. And my experience -- personal experience with that particular law is that they use that against you as an employee. They specifically will tell you in the oil and gas industry, pack your bags. If you don't like it, pack your bags and out the door. And unfortunately, they use that so often that I'm sure that there's a lot of fear that's in the employees. They need their jobs.
COMMISSIONER FELDBLUM: Well, one of the reasons I'm so glad, Madam Chair, that you've established this task force is that I feel this might be something that we look at as a task force, what might be some creative ideas, how do we convey to folks, for example, that if you've got three or four of you that think that -- that feel experience discrimination, you can go to an EEOC office and say, I do not feel comfortable bringing this charge. But I think there's enough information here for a Commissioner to issue a Commissioner charge against that employer, start the investigation and there is no individual people named. I would be happy to sign five of those a week if the allegations came in.
Mr. Ratliff, this is a question about how to make our enforcement system even more effective. You noted that this started with the Wyoming FEPA, the local lawyer you got went to the Wyoming FEPA first. And I remember when I started, I was struck that, you know, like the second year when I was focusing on this, 100,000 charges came to the EEOC. Fifty thousand charges came to FEPAs through their work-shares with us. So that's a lot of charges that are being done by FEPAs. Can you tell us how it was that the Wyoming FEPA reached out to you, if that's what happened, or did you see it in our computer system? How is it that you guys then got involved -- we guys got involved?
MR. RATLIFF: I can't say with a hundred percent certainty, but my memory is that there were -- most of the charges were filed with the Wyoming FEPA and then at some point somebody had filed a charge that was beyond 180 days with the Wyoming FEPA and because it was beyond the 180 days, they transferred that charge to the EEOC and then with that there was a request at some point that all the charges just be transferred to the EEOC and I believe that was made by the Intervener's Council, but I'm not entirely certain.
COMMISSIONER FELDBLUM: Okay, well, again, I think that there's work that the task force can follow up on in terms of sharing information. The last thing I would say, I'm sorry to hear that there's so much harassment in the federal sector. Perhaps that's because federal sector employees know more about their rights and so that fear factor -- and there isn't, it's the opposite of the right to work. It really is a right to work in terms of it's much harder to dismiss a federal employee, it'd be worth looking into that, but in terms of your -- well, all of your points about more guidance to employers about EEOC's legal positions, every time I talk, I encourage people to look at our federal sector decisions because we do set out our position on very fact-specific cases, our position on social media. We have several cases that lay that out. Those cases are all on Westlaw and I think we as a Commission can do a better job of highlighting the federal sector cases that actually state the law. But it's something I always encourage folks to look at as well. Thank you. My time is up.
CHAIR YANG: Thank you. Commissioner Lipnic?
COMMISSIONER LIPNIC: Thank you Madam Chair. And again, thank you to all of our witnesses for your excellent testimony. Mr. Montoya, as the Chair said, thank you so much for your courage in bringing your charge in the first place. I wanted to ask you about your comment or what you said in your testimony the first time you went to work in the oil fields and you were subject to some of the racial epithets and the reaction you got was, welcome to the oil fields. And I'm curious what was your prior work experience prior to going to the oil fields and what was your reaction to that based on where you had worked previously to going to, you know, this new -- not new but certainly booming industry, a bit of the Wild, Wild West in terms of its development and what did you think about that when you first heard that?
MR. MONTOYA: Well, I was a bit shocked, okay, needless to say. Coming from Albuquerque, the population is very diversified. Moving to Denver, the population is very diversified and moving to Wyoming, it was a bit of culture shock for me and then to walk right into the hornet's nest, for lack of better terminology for it, was -- it was very unsettling for me. Immediately after that meeting in the morning, I was speaking to my nephew in Spanish and that was the very first time that I got that other comment from him, this is America and we speak English here.
I'm a bit of a mouthy person, okay? So my response to him was that that's the fastest growing second language of this country, buddy, and I suggest that you learn how to speak it as well. But it was -- it was regular. So it never -- you can never get used to something like that. So I mean, I really -- that's basically what my reaction was to all of that.
COMMISSIONER LIPNIC: And I'm curious, and I'm not sure I'm going to ask this question in the right way, so bear with me. But obviously there are some industries and that was the comment to you, like hey, this is a roughneck industry, right?
MR. MONTOYA: Right.
COMMISSIONER LIPNIC: And there are certain things, this is just the way people talk around here or this is just the way it is. Was there in any way sort of, you know, in your mind or some of your coworkers a sense of, okay, maybe there's some things I might be willing to put up with in terms of sort of a rough workplace or did you just feel like completely, I don't have to put up with any of this crap?
MR. MONTOYA: The second one.
COMMISSIONER LIPNIC: And you understand my concern about --
MR. MONTOYA: I do.
COMMISSIONER LIPNIC: Or question about, you know, I do think there are some -- many industries or workplaces where, you know, people are sort of expected, hey, this is the way we do things around here. It should be, you know, not tolerated, but --
MR. MONTOYA: Well, I did work hard all my life, okay? I came from Denver and I was working in the low voltage electrical field. I was a contractor for the cable company in Denver and I worked with all types of people and had never experienced anything like this before. So you know, it was considerably different going into this field and then hearing that it was part of the language of the oil field industry and frankly, that was unacceptable to me.
COMMISSIONER LIPNIC: Right, right. Well again, thank you for your -- for filing the charge in the first place. Let me ask to -- and I'll actually direct this question both to Carol and Sean, related to some of the training from the EEOC and, Carol, you mentioned 49,000 people plus had been trained in the past year. And one of the -- and I know this -- when I had talked to many of the regional offices, a lot of the training that had been started under the Youth at Work Program under former Chair Earp and, Sean, I say this in particular to you as a former school teacher, was specifically designed to train in particular, you know, young people, women and young women in particular about what their rights are and the behaviors that they do not have to put up with.
So I'm wondering do you have any information about how much characterized as Youth at Work is training was part of that 49,000 and then, Sean, my question to you is, to the extent -- you even touched on this -- about how effective you think that is for younger people?
MS. MIASKOFF: Well, I guess I'll just hand it over to Sean because I don't have, you know, a number or a ballpark on that.
COMMISSIONER LIPNIC: Okay. But do you know --
MS. MIASKOFF: Yeah, I understand.
COMMISSIONER LIPNIC: It certainly was incorporated as part of some of that continued training.
MS. MIASKOFF: Right, right. I probably -- I'll look into it.
COMMISSIONER LIPNIC: Okay.
MR. RATLIFF: I mean, I can't speak for certain about how effective that is. I just know from my experience as a teacher in high schools that I think young people are receptive to this kind of thing and that they tend to be very idealistic. I think that if we can reach them when they're young before they get sort of into the workplace and before they start having experiences, that that would be a good thing. But I can't tell you exactly the best way that you could do that or anything like that.
COMMISSIONER LIPNIC: And is my time up already?
CHAIR YANG: We'll have another round.
COMMISSIONER LIPNIC: Are we going another round? Okay. All right, well then I have a couple other -- a number of other questions. Thank you.
CHAIR YANG: Thank you. Commissioner Burrows?
COMMISSIONER BURROWS: Good morning. I wanted to, as I listened to this, it seems that the theme that runs through everything, you know, I'm getting the impression that harassment is about culture and power. So you have a power differential and you see it and I wanted to associate myself with the remarks from Commissioner Barker about these very vulnerable populations, particularly some of the farmworker communities. I certainly saw that in the human trafficking work I was doing at the Department of Justice previously.
And a culture that uses retaliation to kind of not just keep the individual from telling, but to do something that keeps everyone else who is fully aware of the problem. You know, sometimes they're not, but sometimes they are, knowing not -- and certainly Mr. Montoya, it sounds like everybody had to know what the situation was. Whether or not they were directing those comments and participating or simply standing by, they knew. So it feels to me as though retaliatory harassment is a kind of harassment we need to be thinking about in this. And also, trying to understand how we get employers to change that culture and the employees who are bystanders or at least not helping to change their behavior as well.
And so, I wanted to ask you first, Mr. Montoya, about your experience and the role that retaliatory harassment had and whether or not that delayed the time it took because it's not entirely clear to me, not having read all the briefs -- I certainly read the testimony -- for you to go ahead and file, that, you know, the knowledge that there was this threat and then it seems actual harassment of retaliation and actual retaliatory actions that occurred and that were -- you know, it was made clear that were going to occur and sort of the role that that played. I'd like to hear about that.
MR. MONTOYA: Our original file of harassment was filed in September of 2009. And that's when we first spoke to the attorney, the private attorney in Denver -- I mean, in Casper. The retaliation charges were handled through him and, I mean, they were handled pretty directly through him. He started filing harassment charges probably about two weeks after I got laid off because, I mean, it was directly -- it was probably about two weeks when Mike got hurt and then all of a sudden his claims started to get denied by the company.
And we had a consistent harassment of Don Longtine and a lot of the drivers were having issues that we didn't -- we kind of had knowledge of them but they didn't start coming forth until after the original charges were charged and we kind of started talking to people about it. So it was a pretty timely thing for us. We filed our harassment charges and the retaliation charges came directly after.
COMMISSIONER BURROWS: Thank you, and I -- Ms. Goss Graves, thank you for being here. I wanted to ask you about, you know, sort of hearing these dynamics and, you know, I really think that retaliation and harassment are two sides of the same coin. When you have vulnerable populations, you mentioned some of the farmworker populations -- what do you think we could do to convince folks in that situation to come forward because you really are -- I think the higher the stakes are, the more the harasser's going to feel free to continue and the more really the worker has at risk coming forward. So talk to us about that and what we could do to help.
MS. GOSS GRAVES: Thank you. You know, it's absolutely a tough issue. There are some models, the Mockley workers in Florida are an example where, you know, they have banded together and organized to put some procedures in place to make it easier for workers to report harassment. And part of what they were able to get is for their employer to have a zero tolerance so that they knew that it wouldn't be a situation that you report harassment and then you are still dealing with that person every single day and now you're dealing with retaliation. So they felt very comfortable and understood that there was a situation where their employer was going to do something. And so, I think that workers have to know that they're going to be safe and that they're going to be protected. And I think for employers to be able to take those strong measures, it's sort of a twofold thing. It is the sheriff example where Commissioner Feldblum started, of understanding there are real consequences if you aren't going to deal with harassment. But it is shifting the culture and I think employers have to be prompted to participate in that culture shift.
COMMISSIONER BURROWS: Thank you.
CHAIR YANG: Thank you very much. Why don't we take a quick five-minute break, reconvene at about 10 to 12 and then we'll have our last round of questions and some quick closing statements? Thanks everyone.
(WHEREUPON, the Commission recessed.)
CHAIR YANG: If we could ask -- hello, if we could ask everybody to take their seats, and we will reconvene. Thank you for those listening. We want to get started, so if you could please take your seats, we would appreciate that so we can end on time.
Well, why don't we reconvene and I will just ask a question to Jane to start and Patricia. We know that most employers are really trying to prevent harassment. They don't want it in their workplace. They've adopted policies. Where are some places where you continue to see problems and how those policies are implemented and how do we change some of that? We've talked about places where there is a culture of fear for coming forward and what have you seen work to try to change that dynamic? So why don't we start with Jane?
MS. KOW: Okay. I wanted to sort of tailgate on a conversation before the break about retaliatory harassment. I think one of the important things that I --
CHAIR YANG: Is your microphone on, Jane?
MS. KOW: Can you hear me?
CHAIR YANG: Yes, thank you.
MS. KOW: Okay, sorry --
CHAIR YANG: Closer --
MS. KOW: Okay. I'm short. So I'll move closer. One of the important things that I think is important to highlight in harassment-based training is in California we have uncapped punitive damages in personal liability for supervisors who engage in harassment and retaliation. So when a supervisor in particular is engaging in unlawful harassment and their own pocketbook is at issue, it really sends a very important message.
The other thing I point out in my trainings is that when you look at San Francisco, the Bay Area, it's a very diverse population. Workplaces are very diverse. So juries may not believe that this person was a victim of, say, racial harassment. But they understand the human compulsion to retaliate if somebody is called a bigot or a pervert or a harasser. And so, they tend to look at retaliation differently than, you know, a discrimination-type of claim.
So trying to get them to see it from the lens of a jury I think is important to incorporate in the training in that most juries are comprised of employees, not managers because statistically there are more employees than there are managers. So they're going to tend to be more sympathetic towards the plaintiff, right, because of their position and life experiences and they might have had similar experiences. So I think it's important to incorporate some of these themes when we talk about training rather than in the abstract about what conduct is prohibited, what our policies say, but how is somebody who doesn't know you and is hearing these facts for the first time, how is somebody likely to interpret what has occurred. So I think that that's a critical piece of the training.
CHAIR YANG: Thank you, Ms. Kow. Ms. Wise?
MS. WISE: Thank you. In the workplaces I feel are the best at addressing these issues, I guess I see three elements. One is transparency. So whether it's an anonymous complaint or it's an issue that has arisen, the employer is transparent. So while they're not disclosing the actual details of an investigation or things that need to be kept confidential, there is transparency. There is an issue. It's resolved. We're not hiding it. We're not trying to pretend we don't have problems in the workplace and just in general the topic of harassment is disgust. It's something that, again, not just once a year but it's a constant topic. And so, people aren't afraid to come forward.
Commissioner Burrows, you referred to those helpers, people who witness something or who might want to question something. It's an environment where that's encouraged. So there's transparency around the topic. I think the second thing that I see is senior management and absolutely CEO engagement on the topic before there's a problem. The CEO is committed. The senior leadership is committed. They care about the topic, not just because they've been sued but before -- hopefully never before they have that kind of an issue. They care about the topic. So they're looking for ways to eliminate harassment, to address the topic. And then finally engagement and by that I mean engagement at all levels. So people are talking about it. It's kind of I think the '90s maybe was kind of the time of diversity training. So it's kind of the new iteration of diversity training. But it's, you know, fostering groups, fostering understanding. If we're in areas where there is more diversity, that's great. If we don't have that kind of diversity, still finding ways to understand, to understand other cultures, to understand other groups, issues, things that maybe we don't understand. So I think those are the three things really that can create a workplace where everyone understands the issues and they're committed to not having those issues in their workplace.
CHAIR YANG: Thanks very much. Commissioner Barker?
COMMISSIONER BARKER: I'll be very brief, and I'd just like to follow up on what you, Ms. Wise, and you, Ms. Kow, said and I totally agree with you, you know, to me in my personal experience the most effective way to prevent harassment in a particular work environment is for the top guy to walk into that training and say, look, I mean business. You know, otherwise, you know, employees are called into a room once a year and it's HR up there preaching to them and they go, yawn, yawn, okay, this is HR. But if it's the guy who has the power to fire them, they listen. And the second thing that you pointed out, Ms. Kow, that I think is so critical is, making these employees understand -- and it's not just managers, it's coworkers, making every employee understand that, you know, I think every state has tort statutes, you know, civil liability statutes of some sort, whether it's intentional infliction of emotional distress or assault, some sort of tort liability that can be attached to a discrimination lawsuit. And I think it's critical that employees understand, you know, it's not just a matter of I may get my hand slapped by the company, but I may be personally sued and ruined financially if I do something that is against federal law on harassment. Thank you.
CHAIR YANG: Thank you. Commissioner Feldblum?
COMMISSIONER FELDBLUM: Thanks so much. First, an observation in terms of the social media points. We held a whole hearing on social media largely at the suggestions of Commissioner Lipnic. And one of the things that I took from that is not only the need to educate employees about what's not okay to do on their personal devices, but actually it then was concrete evidence of harassment that was somewhat useful to have which wouldn't have had necessarily in just the comments that you had in the oil field. My question is about bystander training and how we can do that well in the workplace.
I thought, Ms. Goss Graves, your point about having shared learning with the administration's work in terms of sexual assault on the college campuses is important. My sister is a Vice President of Dean of Students at Pomona College, which has actually been noted as one of the schools that have done a good job. And what she has said to me over the years is one of the most effective things they've done is train students that when they see harassment or they have heard about sexual assault, for them to come forward. Now, I think students feel a lot more empowered than workers because they're not worried about losing their jobs.
Plus, for some reason, students feel really empowered, as a law professor for many years. So how could we do that bystander training well in the workplace, really for sort of on this end of the panel I think, although?--
MS. GOSS GRAVES: Well, one thing that occurs to me and I think this is building on something that Ms. Wise said about having -- ensuring that everyone is trained but that training may look different for different types of employees. And you know, I do think that, again, some of this is learning about what's been happening in education communities. But there is a lot of research out there about bystanders' intervention and when people feel empowered, if they feel like -- if they feel like you're making a mistake to not speak up and that you are part of the problem if you don't speak up, that can make a difference.
And I can imagine how the EEOC could figure out some ways, identifying bystander training programs that are out there, even if they are currently geared towards different populations. There's probably some lessons learned and then making it a little bit easier for employers to incorporate that into training that they're already doing.
MS. WISE: I would completely agree with Ms. Goss Graves that I think the idea of borrowing from what we've seen already, the education that's going on, on college campuses today, just beginning -- I mean, there's a lot of work yet to be done. But I think we could start there and we specifically do need to train the bystanders, the helpers, how do you feel, how do you start to have those tools to be empowered because watching something, seeing it, observing it and then coming forward is critical and employers want -- they should want to foster that. It helps all of us. It helps to eliminate the harassment. It helps before there's litigation.
So just as supervisors are on the front line and we spend a lot of time and attention often and we know this -- we know this from productivity training, from all of the, you know, Six Sigma, Lean, those kinds of things. We know that workers, the people who are actually doing the work often know far more about what's happening in the workplace than the supervisor. So why not take advantage of that and in this arena as well. And so, how do we apply it here? I think we know a lot of the tools for that. Let's just apply that now to harassment.
COMMISSIONER FELDBLUM: I'm going to stay below my time so that we can all end on time.
CHAIR YANG: Thank you. Commissioner Lipnic?
COMMISSIONER LIPNIC: Thank you Madam Chair. First of all, I want to echo the comments of Commissioner Barker and the question that I was going to ask, particularly for Ms. Wise and Ms. Kow, was about leadership in organizations because it does seem to me that we have had, you know, a couple decades' now worth of training, right. And as Commissioner Barker said, some of it becomes a bit like an episode of The Office. And I do wonder about and we've heard a lot about sort of creating that safe space in organizations where people feel like they can report. But unless there is that commitment of leadership and understanding of consequences that, you know, we'll be training people forever and ever, which of course we should do.
But so I wonder, you know, if you guys can comment on that and what your experience has been in dealing with organizations and trying to instill that leadership from the top in the way that over the last, you know, 15 years we have had these commitments by senior leadership to diversity. What do we need to do to have that same commitment, if we are lacking it, for harassment purposes? Ms. Wise?
MS. WISE: I think that not only does the CEO have to give the stamp of approval, I won't do a training for a client myself unless the CEO commits to actually attend. So it's not just say we're doing it but be there, spend your time too. If your time is not -- if this isn't valuable enough for you, then no one else is going to value it either. And then, I think someone mentioned today briefly and I think it's true. It needs to be -- this needs to be something that's evaluated. This needs to be part of management's evaluation process. Every supervisor, there should be a section in whatever the performance evaluation process is that evaluates this.
What do you do to engage your subordinates around the topic of harassment? And if you've had -- if someone has had an issue, how has that been handled? So it has to be measured. And so, it's part of the process and I think those are two ways to make sure that it's not just training but then we measure the effect of the training.
COMMISSIONER LIPNIC: Ms. Kow?
MS. KOW: I provide harassment prevention training to national law firms, universities and the like, and one thing that I think is pretty powerful is where the memo to the entire office comes from the managing partner, that this is required training and the managing partner of that office in San Francisco or Los Angeles attends the training as well. So this isn't just for staff but it is for everyone, partners, associates, paralegals, legal secretaries in the organization. And so, the notice that goes out to employees about the training shouldn't be delegated to a training coordinator, should come from the top of the organization.
We view this to be valuable and important and it is not a waste of time. It isn't only because we're compelled to do this by state law. But rather, this is an important part of everyone's training in the workplace. And training the leadership team separately from managers, so you might have staff training, managers training and then the leadership training about what they must do to set an example in the workplace.
If they hear the management team joke amongst themselves and refer informally to one another in a certain way and high-five one another, what message does that send to somebody who is at the lowest rung of the ladder? And so, there is important messages for the different separate populations that are being trained. What are their individual responsibilities as leaders of the organization? So I approach training very differently depending on the industry, the population and what level they are in the organization.
COMMISSIONER LIPNIC: And let me ask you a quick follow-up, both of you. In terms of that training, what do you do specifically for the supervisors of the supervisors? So in Mr. Montoya's case, his supervisor is harassing him. And very often it's the supervisor who's the harasser. So what is it -- you know, and obviously layers of management. So what do you do in particular to get that message across to the supervisor of the supervisors of how to deal with them?
MS. WISE: Again, their responsibility is at the highest level. So even more so than just a front line supervisor, I mean, they are the organization. I mean, there's a reason that the law imposes strict liability at that level and I think the law should. They have the full authority of the organization. So their every action is monitored more carefully. They cannot afford to make a mistake. And so, they need to understand that. They need to embrace that and they need to be -- they need to be setting the example for the entire organization. So their example to their supervisors has to be without exception entirely appropriate and without flaw.
MS. KOW: One of the things I talk about is what strict liability really means because that's a legal term, right? It's a -- you know, when it's quid pro quo harassment, it's a one-strike rule. You know, you don't get second chances. It's a one-strike rule and what that means for the organization, what that means for that person's career, what happens to their reputation, these days people -- you know, you can go on Google and find out that an organization was sued and who the parties were. This has a longer track record than ever before in history. It is going to be perpetually out there in social media what has happened in this particular workplace.
I also convey a message to supervisors that even if the concern is about you, you have a duty to report this. That is, in the course of perhaps providing feedback to an employee or coaching them, they say, you're harassing me. You're not an exception to the rule simply because the complaint is about your conduct. You still have an obligation to report that to HR and it must also be investigated and we need to follow the same process. So there's different messages that I would convey to supervisors and supervisors of supervisors to ensure that this is -- this policy, like any other in the workplace, whether it's safety, conduct, attendance, needs to be enforced the very same way, simply because it involves human interactions rather than what time someone shows up for work, you know, doesn't make it less important and less valuable to the organization. So there's different messages that I would convey depending on the level of management that they hold within the organization.
COMMISSIONER LIPNIC: Great. Thank you very much.
CHAIR YANG: Thank you. Commissioner Burrows?
COMMISSIONER BURROWS: Yes, just very briefly, this has all been very useful. It occurs to me as I'm thinking about this, because I also believe and worked with SHRM quite a bit in the past, that employers want to do the right thing and it seems like there's a -- or most employers certainly do -- disconnect sometimes between the headquarters and the HR and the folks in the field.
And if you're an employer who's -- you know, say you're the CEO and you're like, hey, I've got my training down. I've told everybody what to do. How do you then know that you can sleep at night because -- how do you check out what's going on in the day to day of the workplaces that you're not actually in because I think that may be part of the problem here, that they may not be out there in the oil field with Mr. Montoya every day when he gets introduced on his first day of work. And so, how do you find out that your house is really in order, particularly for some of the employers that have -- either if they're large or just have various locations.
MS. WISE: Well, I think if you're the CEO, you probably don't sleep at night. So I think it's just -- it's a question like anything else of priorities, how much time do you devote to it, how much emphasis do you put on it with your senior leadership team, the resources you devote, time, walk around, get around. So obviously the larger the company, the harder that is. So you've got to trust your team to be carrying out that message.
So I think the more attention that you give to it, the more attention you're ensuring that your senior leadership team is giving to it. And like anything else, what you're saying, are you making sure that that is getting passed down through the ranks like any other important strategy that you have.
COMMISSIONER BURROWS: Ms. Goss Graves?
MS. GOSS GRAVES: I just had an additional thought about that because if you're a very large company, that's a concern for every aspect of the company. That's a concern about are your shelves stocked appropriately and are they really having the right workplace that you're envisioning at the highest level. And so, for the things that really matter, you're going to put safeguards in place to make sure that your goals and your mission are being carried out the way that you expect them to.
MS. KOW: I would just like to add something that we haven't talked about today is documentation and record-keeping, okay? And you know, if you're running the headquarters and you're wondering what's going on in the field offices, are there established protocols for documenting concerns that are brought to your attention, whether informally or formal complaints? How is this being documented? Are we -- do we have a process in place to follow up on these complaints? What's the time limit and what is a process for following up? Who is in charge of -- who is responsible for that and who do they need to report this to at headquarters? So an established protocol for that I think would be helpful to ensure that there's consistent enforcement of the policies and that it's addressed in a very systematic way, particularly if you have one office with many multiple smaller field offices.
COMMISSIONER BURROWS: That's very useful. Thank you, and I'm a big believer in what gets measured gets done. I think Ms. Wise was talking about that too. So I think that that's very helpful. I don't have any further questions. I wanted to thank you all again. The testimony has been excellent, very useful. I wanted to thank Mr. Montoya and I hope that when you get back to Wyoming you will also thank the others who came forward in your case and had the, you know, courage to do that. It's been very helpful.
I think I saw that Mr. Longtine was from Riverton areas and I worked a lot with the tribes of the Wind River Reservation. So please give him my greetings as well. Take care.
CHAIR YANG: Well, thank you, everyone, for your really excellent testimony. At this time, I'd like to give our Commissioners a chance to make a brief closing statement. If we could try to keep it to about three minutes, I think we'll stick on time. Commissioner Barker?
COMMISSIONER BARKER: Thank you, Madam Chair. I would just make two points that I get from the testimony today. And the first is I'm thrilled that you have announced, Madam Chair, the task force on the harassment issue because it's clear from the testimony today that it's something -- it's an area that as a Commission we need to really -- it's time for us to refocus on.
And in keeping with that, I would hope that the task force might look first and foremost at the federal sector because while there has been a lot of testimony today on how we can help employers to better train, you know, what is it -- you know, how is it that the supervisors aren't getting the message, blah, blah, blah, you know, the testimony as I understand it is that the federal sector, federal agencies, federal departments are worst offenders than private employers. So I think as an agency responsible for that, we look first to what's going on, you know, that this occurs and is it that there's more harassment or is it that federal employees feel safer to make harassment complaints. I don't know. And so I would really hope that in light of the testimony today that the task force would focus on that.
And the second thing I would hope that the task force would focus on and really make a national priority, maybe just for a year or however long, is the incidence of harassment that to me are the most heinous, not that every form of harassment is not. But to me, the most heinous are the ones that rise to not just criminal activity but severe criminal activity. And I'm talking about rape, rape and sexual assault. And we've heard today about barriers to prevention from the standpoint of language barriers, cultural barriers and one of those barriers we all know is our own -- the own barriers we face in trying to convince populations where English is not the first language that the EEOC is not Department of Justice or it's not the Attorney General's Office. It's not a district attorney's office. It's not a police department and that we are not concerned about their legal status. Our concern is whether they as people who go to work every day in this United States have their rights violated, period, and that we are there for all of those people and that we have tools in our tool chest that law enforcement does not have. You know, law enforcement, their hands are pretty much tied if a woman does not come forward immediately and report rape and sexual assault, very, very difficult, if not impossible to get a conviction in that case.
But we don't have those time constraints and we also have, as Commissioner Feldblum mentioned today, the additional tool of being able to bring a Commissioner's charge where victims do not have to be identified. So I am really excited about the task force, appreciate your testimony and look forward to the work that the task force will do. Thank you.
CHAIR YANG: Thank you very much. Commissioner Feldblum?
COMMISSIONER FELDBLUM: Thank you. So again, thank you to all of you for your testimony. Thanks to the four of you who traveled to be here. What I tend to like to do in these closing statements is just encapsulate some of the highlights that I've gotten. So we don't just say thank you. And again, I'm so glad there'll be a task force that can potentially follow up.
So it seems like there are definitely three areas. There's publicity. There's training. And there's protocols. In publicity and general education, I certainly hope we use things like YouTube and Vine you know, not just Twitter and Facebook because I think there's something about seeing people. I think in training we've gotten lots of good ideas. I think in particular I would highlight learning from the social psychologists, et cetera, about what they know about both empowering people who have experienced harassment, the bystanders.
I think a piece of this is absolutely the schools and getting people when they're younger. I think the other main thing is how sectoral it must be, sectoral by industry, sectoral by different types of employees and sectoral by type of harassment, something that Commissioner Lipnic mentioned in the beginning. There might be different reasons that are creating the racial harassment, the sexual harassment, the disability harassment, the age harassment.
And finally, in terms of established protocols, again, I think we got lots of good ideas that I hope we document so we can follow up on it. And I think one of the ones I want to highlight is the idea of collaboration among employers, employers that are already doing good things. And I guess on the first two, I actually see the task force as actually being able to help do some stuff. I mean, in the last -- partly in the others as well -- I sort of just see it more as a catalyst. I mean, it's not our job to do the training, you know? It's not our job to do the collaboration. But I think we can create a space and be a catalyst by which some of that happens. So thank you again.
CHAIR YANG: Thank you. Commissioner Lipnic?
COMMISSIONER LIPNIC: Thank you Madam Chair. Again, thank you so much to all of our witnesses for your testimony. I did want to note that I don't think that Commissioner Feldblum meant to do a particular product endorsement when she was mentioning -- or perhaps you did mean -- and I was waiting for her to, you know, talk about tweet, you know --
COMMISSIONER FELDBLUM: No, but I had down here Twitter and Facebook. That's so old news.
COMMISSIONER LIPNIC: Oh, see, there we go. I did want to particularly -- and I look forward to on the task force drawing on Commissioner Barker's experience as a prosecutor and her years of experience in handling cases involving sexual assault. And I just -- I would note -- I think I'll just quote from Mr. Montoya, the last sentence of your testimony where you said, "All I ever wanted was to change how people were treated." So hopefully, the work of our task force and we will be able to make some advancement in what is this persistent problem in our workplace.
And you know, we've seen so many workplaces and we've seen this over the past year and a half with the discussions about sexual assault on campuses, certainly the issues in the military. But as we have all noted and understand, this is a continuing, persistent problem, not just in those particular places but really in so many of our workplaces. So thank you for all of the work that all of you are doing and I look forward to working and collaborating with all of you and your organizations and the employer and employee community writ large so hopefully we can make some dent in this issue. Thank you very much.
CHAIR YANG: Thank you, Commissioner Lipnic. Now, Commissioner Burrows?
COMMISSIONER BURROWS: Thank you again. So I really appreciate it and I have a lot to think about from this. I hope that we'll be looking maybe at some of the retaliation issues which seem so key to me to sort of changing the culture and making it possible that each one of us can, you know, in various stages can continue to do something about this problem because I think that's part and parcel of what keeps the harassment going. And so, maybe 10 years from now we won't be looking here and going, gee, look at that, 25 to 30 percent everybody's charges.
I am also curious about the federal sector having worked a lot in the federal government. I tend to suspect, although like Carol Miaskoff, I do not have the numbers. I suspect that part of it is it's so difficult to fire a federal government worker. So I don't know if that's -- so problems that maybe in the private sector you're just out of a job. You continue to fester. But regardless of what's going on, we should, you know, look into it. So thank you very much.
CHAIR YANG: Thank you, Commissioner Burrows. And I want to thank all of you again for all the time and thought you've put into your testimony today. The issues you have put on the table for us will certainly guide our work going forward. I want to thank Commissioner Lipnic and Commissioner Feldblum for agreeing to lead this task force so that we can continue this conversation. We'd like to involve all of you as we move forward.
One of the issues that I'm particularly interested in understanding is how different forms of harassment manifest themselves in the workplace. Commissioner Lipnic referenced this in her opening statement but what are the reasons why we see race or national origin discrimination in particular workplaces. Why are we seeing sexual harassment in other workplaces? I was particularly struck to learn and really looking at our charge data that disability harassment is our second most frequent form of harassment that's alleged. And what are those workplace conditions that lead to harassment based on disability so that we can then understand how do we prevent it.
So I appreciate all of your thoughts on that. We know that the best way to leverage our resources as an Agency is to get more people involved in thinking about the solutions and thinking about how we get the word out on those solutions. And I was particularly happy to hear from Ms. Wise that your clients are really eager to partner with us on that. So I encourage all of our stakeholders out there to participate, to get involved and share your ideas because we really are looking forward to a partnership in this effort.
And before we close, I want to note that the Commission will hold open the meeting record for 15 days and we invite members of the public to submit written comments on any issues or matters discussed at the meeting. Those comments may be mailed to: Commission Meeting, EEOC Executive Officer, 131 M Street NE, Washington, D.C. 20507 or you can also email them to CommissionMeetingComments@eeoc.gov. That is all one word in the email address. All comments will be made available to members of the Commission and to Commission staff working on the matters discussed at the meeting. In addition, comments may be disclosed to the public and by providing comments in response to this solicitation, you are consenting to their use and consideration by the Commission and to their public dissemination.
Accordingly, please do not include any information in the submitted comments that you would not want made public such as your home address, telephone number, et cetera. Also note that when comments are submitted by email, the sender's email address automatically appears on the message. So I suppose we have a little experience in grappling with this public-private line. With that, is there a motion to adjourn?
COMMISSIONER BARKER: So moved.
CHAIR YANG: Is there a second?
COMMISSIONER FELDBLUM: I second.
CHAIR YANG: All in favor?
[WHEREUPON, unanimous "ayes" were heard.]
CHAIR YANG: Opposed? Thank you. The meeting is adjourned.
[WHEREUPON, the EEOC Commission Meeting was adjourned at 12:32 p.m.]