The U.S. Equal Employment Opportunity Commission

Commission Meeting of November 16, 2005


The Commission convened at 10:10 a.m., Cari M. Dominguez, Chair, presiding.


NAOMI C. EARP, Vice Chair
STUART J. ISHIMARU, Commissioner


Announcement of Notation Votes

Motion and Vote to Close a Portion of the Next Commission Meeting


John Schmelzer

Veronica Villalobos


Deidre Flippen

Carol Miaskoff

Cynthia Pierre

James Lee

Motion and Vote to Approve Revisions to the Employer Information Report (EEO-1)


10:10 a.m.

CHAIR DOMINGUEZ: Good morning and welcome. We're so glad you're here today. We really appreciate your taking the time to join us this morning. 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?

MS. WILSON: Good morning, Madam Chair, Madam Vice Chair, Commissioners. I'm Bernadette Wilson from the Executive Secretariat. We'd like to remind our audience that questions and comments from the audience are not permitted during the meeting, and we ask that you carry on any conversations outside the meeting room, departing and re-entering as quietly as possible. Also, please take this opportunity to turn your cell phones off or to vibrate mode.

During the period October 22nd, 2005 through November 14th, 2005, the Commission acted on one item by notation vote: approving the training facility for the 2006 EXCEL Conference. Madam Chair, it's appropriate at this time to have a motion to close a portion of the next Commission meeting in case there are any closed meeting agenda items.

CHAIR DOMINGUEZ: Thank you, Ms. Wilson. Do I hear a motion?


CHAIR DOMINGUEZ: Is there a second?


CHAIR DOMINGUEZ: Any discussion? Hearing no discussion, all those in favor, please say aye.

(Chorus of ayes.)


(No response.)

CHAIR DOMINGUEZ: The ayes have it, and the motion is carried. Can everybody hear me okay? I have a little bit of, still have some laryngitis. Okay. Today, we have two items on the agenda. The first item is EEOC's actions in the aftermath of Hurricane Katrina. At our last Commission meeting in October, we discussed emergency preparedness in the workplace. This is an opportune time to continue the important discussion by hearing a report on our operations in the New Orleans District Office and Gulf region in the last two and a half months, as well as the many extraordinary efforts that the EEOC staff has made both in the field and in headquarters to respond to this unexpected disaster.

We will hear an update of the progress we have made in reopening our office and serving the public in the Gulf states. I'm delighted to welcome, first, John Schmelzer, who is the Acting Director of Field Coordination Programs. Our second presenter is Veronica Villalobos, an attorney in the Office of Federal Operations. She's just returned from the Gulf region, where she's served on detail to FEMA.

Let me also note that, although we had planned to have Keith Hill with us today, Keith is our Acting Director in the New Orleans District Office; he very much regrets that he's unable to be with us today. He has, however, sent a statement, a very short statement, which Mr. Schmelzer will read on his behalf. So without further ado, Mr. Schmelzer and Ms. Villalobos, please come up and make your presentations. Thank you. John, you can begin.

MR. SCHMELZER: Good morning, Madam Chair, Madam Vice Chair, Commissioners. The Commission went 36 years before we ever had an office destroyed. And in the last four years, we've had two offices destroyed. Yesterday, I was in our Indianapolis District Office, and I was discussing with them the COOP plan, and they pointed out to me just one week ago, about 120 miles away, there was a tornado in Evansville, Indiana within this district's jurisdiction that killed 23 people.

We talked about the importance of the COOP plan and for the employees to continually update their contact emergency information. This was about 1:00 yesterday afternoon.

I had a speech on the 40th anniversary of the Commission opening its doors, at 7:00 at night in a church. My speech was delayed a few minutes because there were sirens going on. I didn't know what the sirens were. Afterwards, I found out it was because there was a tornado watch, and they were thinking whether we should all move to the basement. So we live in a different era, and we better be prepared for it. What was unthinkable now seems to happen with some frequency.

Let me begin by reading Keith's statement:

"As you all are aware, on August 29th, New Orleans and the Gulf Coast community was devastated by the effects of Hurricane Katrina. One day after Katrina hit, the levy system in New Orleans gave way, and the city of New Orleans was inundated with flood waters which poured in from Lake Pontchartrain. For almost two weeks, water as high as 10 feet remained in the city.

In preparation of the hurricane's landfall, the New Orleans District Office was closed, and the City of New Orleans was evacuated. Just within the last few weeks, people in the hardest hit areas of New Orleans and the Gulf Coast region have started to return home.

Before proceeding, however, I want to take this opportunity to thank the Commission, the Katrina Taskforce, district area and local offices across the country for the prayers and outpouring of support we have received. We have been embraced in the arms of a very caring EEOC family. For all this, we all will be forever grateful.

I want to report to you that we anticipate reopening the New Orleans District Office on November 29th. The office will be located at 1555 Poydras Street in the city's central business district. The location is roughly three to four blocks from the district office's previous location. It is located very close to City Hall, Louisiana Superdome, a Louisiana state office building that houses vital records and provides services to the public. The district office will occupy approximately 8,000 square feet on the 19th floor of this 22-story office building. The district office will share part of the 19th floor with the Veterans Administration. There is available in the area parking, restaurants, hotels, banks, and other businesses.

The agency has executed a contract to begin moving file cabinets, files, and other items on November 28th from the old office building into the new location. The agency will rent furniture because it is inadvisable to use the old system furniture due to mold and mildew concerns."

-- So if I may interject, the office survived, but it is inaccessible because windows were blown in, there was tremendous water damage to the physical structure of the building. They're not quite sure about the extent of the structural damage, and there are tremendous mildew problems throughout this office. --

"New Orleans staff that I have spoken with have told me of their eagerness to get back to work and contribute to the mission of the agency. Currently, there are 31 employees, including myself, who have returned to the New Orleans or the Baton Rouge area. The Department of Energy has given us access to one of its facilities located about seven miles west of downtown New Orleans. New Orleans employees have access to a conference room with ten computers and a telephone. There is one available cubicle with two more computers and a phone. Employees can conduct by phone some limited business, such as charging party interviews, as well as contacting witnesses and respondents.

We have just recently issued phone cards to our employees for use in agency business. Some investigative files, mainly A1 files and litigation files, have been retrieved from our old office building at 701 Loyola Avenue and distributed to the investigators and attorneys who are in New Orleans. Charges taken by our Houston and Dallas offices have been retrieved from these offices and given to New Orleans staff.

Eighteen employees are not within commuting distance of New Orleans. Of the 18, 12 are reporting to work in other EEOC offices. One of the 12 employees requested and received a permanent transfer. Five employees are located at least two or more hours from a district area or local office. One employee transferred to another agency.

Twenty-three New Orleans employees lived in areas hardest hit by Katrina. Most, if not all, of these employees lost their homes. In order to provide a place for these employees to live so that they could return to work, our agency sought the assistance of the FEMA.

A list of the effected New Orleans employees was provided to FEMA, whose representatives then contacted each employee and made arrangements to place each employee and their families in available FEMA housing. FEMA is utilizing cruise ships and hotels for this purpose.

The EEOC Cares Program. Trying to find a way to uniquely respond to each EEOC family who felt the effects of Hurricane Katrina, the Katrina Taskforce created the EEOC Cares: Co-workers Aiding Recovery through Encouragement and Support Program. Many hours of creative thought went into developing this program. Offices and headquarters from around the country have adopted New Orleans employees, contacted them, and have assisted employees in ways particular to each employee. Offices have had receptions, picnics for our employees, and have had bake sales, auctions, and other fundraising events for us. They have made personal contact with New Orleans employees, invited them to their offices, as well as their homes, and made them feel welcome wherever they were.

This outpouring of care has had an immeasurable impact and effect on each New Orleans employee. New Orleans employees have conveyed deeply-felt appreciation for the gifts, cards, and expressions of care they have received. We have felt the warm embrace of our EEOC family.

Some insights: the New Orleans District Office has now been closed for ten weeks. Employees evacuated to many cities across the southeastern United States. From this experience, there are at least three areas of importance that I would like to address.

First, employees must be given the responsibility to report their whereabouts to the agency immediately but no later than 24 to 48 hours of an evacuation or a disaster. Each employee should have a number to call or could use the agency's web site for checking in. Being able to account for the safety of each and every employee and any family member of that employee is a critical first step in responding to the needs of employees in time of an emergency. Communication is extremely difficult in disaster areas as phone lines and cell lines, as we learned, may be inoperable.

Second, in time of a disaster, employees are going to need reassurance regarding their ability to support themselves and their families. The response by the agency in the aftermath of Katrina was extraordinary. Employees were immediately placed on administrative leave and provided per diem.

I would recommend that information regarding the evacuation support be placed on our web site, on our brochure, outlining for employees the benefits they can expect in times of disaster. In this way, employees will know what to expect in terms of benefits and pay when they encounter a situation like Katrina.

Third, annually update the continuation of operation plans, commonly referred to as the COOP plans. If possible, senior staff should meet in the district or city designated in the plan. From there, they can begin immediately to conduct agency business. Notification must be given to our stakeholders concerning the treatment of charges, litigation, mediations, and contracts.

Thank you again for this opportunity to address these issues. I sincerely hope that I have served the Commission well as Acting Director during these past ten weeks."

That was Keith's statement, and I think I'll just transition to the points I wanted to make. And then you will have Veronica Villalobos, who was one of our FEMA volunteers, talk about her experiences.

We convened -- the hurricane hit Monday, the levies broke Tuesday, we convened Wednesday morning in the Chair's office, and we had a broad cross-section of the agency because one of the items we learned from New York is that the problems and the issues cut across all office lines. So in the beginning, it's very important to have the broadest representation as possible.

Offhand, I remember we had the Office of Field Programs, the Office of Federal Operations, the General Counsel's Office, the Office of Human Services, the Office of the Chief Financial Officer, Administrative Services. The Office of Information Technology played a very key role. And I think I'm leaving out one office.

We then began assigning tasks. One of the tasks is a number of programming offices operational issues arise that the office that is no longer functioning cannot deal with. And we need to think about what those issues are since they're not able to respond to our stakeholders.

The issues that we identified and are working on are the following: potential charging parties. New Orleans office has been closed ten weeks. During that time, 300-day period may have run. People didn't have phones. There was no office to contact. They may have been dislodged from their residences.

In the state of Mississippi, the Jackson Office, there is no FEPA, so they only have 180 days. So instructions are going to the field to take what would otherwise would possibly untimely charges and bring them into the system, validate that the reason they could not file through affidavits was because of the timeframe. And then we'll work from there. That is the first issue.

Second, parties to an open charge, both the charging party and the employer: when we send out requests for information, we have pretty strict time deadlines. Particularly the employer community is very aware of them, and, in the case of New Orleans, they were very concerned, "Well, who do we send the information to if there's no office?" Well, we didn't have the files at that point, and so, through the use of technology on the web site and through the call center when people call, we were able to tell parties to open charges that all deadlines were suspended until further notice. We are in the process of modifying that to take out until further notice, until further notice or unless contacted by an investigator. So that will be the intervening event.

Third, programmatic issue: this is perhaps the most delicate. And that is charging parties who received right to sue notices prior to Katrina hitting the Gulf and their 90 days had begun to run. There are no attorneys left. Law offices were wiped out. Courts were closed. There is no office. Again, on the web site and through the contact center, we're sending out guidance that charging parties should contact us, and we will reissue right to sue notices so that their 90-day period will not expire, and attempt to put in as favorable a position as many of those charging parties who were unable to move due to circumstances caused by the hurricane.

Fourth operational issue: we insist that charging parties continually contact us if they move. Well, in this event, it may be difficult to contact us if you're in a shelter or so. We have no way of knowing where these individuals are. And one of the things we don't want to do, as people are coming now to work, is to prematurely close out charges. So we're indicating - that we're going - to the field that they must make repeated attempts and no charge now is to be closed, at least until the end of this year as we review each of them and the circumstances as to why we haven't heard the charging party. We'll make repeated attempts to contact them through their relatives and whatever information will be gleaned from the files we're taking out of our New Orleans office.

I apologize. I see my time has stopped, so let me turn this over to Veronica.

CHAIR DOMINGUEZ: Excuse me. Did you add Keith time to John's, or is that his independent time? I thought we had combined the two? Twenty minutes.

MS. Mastroianni: I had a different -- go ahead.

CHAIR DOMINGUEZ: Go ahead, John. You probably have what? About five minutes left?



MR. SCHMELZER: There are a number of other operational issues. In summary fashion, again, using the web and the contact center, all issues relating to litigation where the Commission had already filed suit, these employers and their representatives were directed to contact the regional attorney in the Houston office since that is where operations are being conducted.

As for federal sector complaints, motions pending before administrative judges and hearings that had been set before the administrative judges in the New Orleans District Office - again posted on the web that everything was postponed and suspended until further notice until they heard from the AJ.

Let me now move to a different area. We have sent 21 employees to FEMA. Ten at a time we sent for a 30-day detail. This came about because an employee at headquarters approached FEMA. FEMA indicated an interest in tapping this individual's services. The individual from FEMA was referred to me and, gradually, we worked up the chain so that I was talking to their Director of Equal Rights it's called there. We have made an arrangement to send ten employees at a time. They go to Orlando for three or four days' orientation as to FEMA services, and then they are sent around the impacted area everywhere around the Gulf.

We have generally, we have sent -- the criteria was that you volunteer. We've tried to spread this across the board. That is no office is sent more than one employee. We have investigators. We have mediators. We have administrative judges going. We have people from headquarters going. All field -- I'm sorry. As many field offices as you can imagine.

I have received a one-sentence feedback from FEMA, and I apologize that I did not bring it with me. The feedback was, "Your employees are terrific. Send us all you have. They are making a great contribution." It was words to that effect. So we can be extraordinarily proud of Veronica and her peers and the agency's efforts.

Last is lessons I learned, which parallel a little bit of what Keith learned. The most important item that the agency needs in anticipating these disasters as part of the COOP plan is an employee roster, and that is the employee, their home phone, their cell phone, and their address. This must be in electronic form. It also needs to be in paper form kept at home. There should be redundant, just like in the military, redundant copies everywhere. It needs to be updated, Keith said annually. I would think almost quarterly. It is the only way we can get a hold of people in these types of disasters.

Second, technology is your friend. In this case, in the first three days after Katrina, we had all these employees spread throughout the southeastern part of the United States. Everybody who lived in New Orleans could not have phone service because it was 504, they had a 504 cell phone, and you couldn't get through. The phones weren't working. But they checked the agency's web site once they got to a place that had electricity just to see what was going on, possibly out of curiosity; they didn't know beforehand. And there, they saw information for employees. And it told them contact us, and it gave them basic information. We would continue their salary, etcetera. And more importantly, it told them if you contact anyone else, let us know.

In the course of about two days, we began with three employees, it was eight employees, and then it was 30 employees. This, in conjunction with the call center; some employees called the call center. And the information, rather than trying to contact the 50 employees, we could just put it up on the web site that you had your salary, we would provide employee assistance, that you would get per diem. It was all done at once.

Interesting about technology, I mentioned the 504 cell phones did not work. That's not particularly accurate. The voice didn't work, but text messaging did, which I don't know how to do, but other people in OFP did. And so even though there was a delay of about 12 hours, initially the messages could get out through cell phones to tell people to check the web site.

Third, technology is a false friend. That is, in the case of New York, as I recall, all the phones were down, not just cell phones but you couldn't call into Manhattan. And so for a few people, in order to assure that they were safe, though we knew, we believed everyone had evacuated the building, people, because we had the addresses, people could get on the subway and check other employees. So it was sort of manually. Rather than using telecommunication, it was having the addresses at home and checking to see if people were home.

Fifth is the initial meeting or phone conversation with the impacted office should be as broad as possible. We talked about that. Also, with Keith, reassurance to staff in the impacted office. In New York, we said we'd give employee assistance. I don't think it was by design, but we just made the offer. We didn't say we'll get the person on a particular day and they'll show up in this office. The New York employees did not want to have an employee assistance program for their first meeting in a building. It was held outside in a park. That is something we at headquarters would not have thought about. So you want to give support as broadly as possible. Let the office where the employees are sort of dictate.

As for New Orleans, we provided the following: we found and confirmed the safety of all our employees. We talked about that. We had salary continuation. We had per diem. For certain employees, their direct deposits went to local banks. The local banks were down. They had no cash. We gave them advances. It comes back out of their salary, but we actually sent advances to rural places in Alabama where a UPS truck could deliver, but that's where they were. We provided employee assistance.

Initially, we got volunteers, EEOC volunteers to offer housing to employees who were located near other EEOC offices. We began EEOC Cares, and, if I had more time, I would read to you some of the e-mails, what some of the people said. It was like Christmas. Their kids and this employee were crying when they received these packages of clothes and games and just support and cards supporting them. This was one of the best things we did. It was fully consistent or an extension of the EEOC model workplace because, if we say employees are our most important asset, this was a wonderful example, both institutionally, how the agency acted, and individually, how our employees acted, of walking the talk.

And last, we are now working with FEMA. One of the benefits of volunteering is we have an inside track to try and get housing for our employees. Thank you.

CHAIR DOMINGUEZ: Thank you, John, very much. Ms. Villalobos?

MS. VILLALOBOS: Yes, Madam Chair, Vice Chair Earp, Commissioner Silverman, and Commission Ishimaru. Thank you so much for the opportunity to speak with you today about my experience with FEMA.

I, along with ten other individuals, flew out to Orlando in mid-October. We had two and a half days' worth of training where they gave us a crash course on FEMA programs, and they discussed with us the way the Equal Rights Office works. The Equal Rights Office at FEMA is very different from what we're used to. It has two components. There's an internal component and an external component.

The internal component, of course, is their EEO office. They ensure that employees are not discriminated against, and that's FEMA employees as well as contract employees who work with Shaw.

The external component is their civil rights program, and they try to ensure that evacuees, that is the survivors, are not experiencing any discrimination in the receipt of the services or in the community in terms of housing or businesses.

Our focus is varied depending on which office you went to. We went to Louisiana, Alabama, Mississippi, Florida, and Texas. I ended up in the Houston area field office and, from there, not only did we work at the super DRC that everyone sees on the news with the long lines, but we also went out to east Texas, which would have been Beaumont, Port Arthur, Galveston, Crystal Beach, Vidor, Orange, Livingston. And these were just some of the DRCs, driving back and forth making sure that the DRCs or disaster recovery centers were accessible to individuals with disabilities, making sure that if there were special needs or reasonable accommodation issues that we would be there to ensure that those were being met.

In terms of outreach, something that FEMA constantly does is going into the community talking to organizations, working with the mayor's office, making sure that all the communities are being reached. One specific problem that we were encountering was in the Hispanic communities, specifically those people from Latin America, were somewhat fearful to come forward to get their, I guess we should say the FEMA services. They were afraid to register. They weren't comfortable coming into the DRCs because they'd see all the law enforcement. And while some people would be qualified because of their status, other individuals and their families were maybe in the country illegally, and so they feared coming into the DRCs.

So we worked very hard with churches, made sure all our literature was in Spanish, as well as English of course, and also in Vietnamese. There was a large Vietnamese community that was affected by Katrina. And so there were many efforts to go out into the community to hook up with churches, organizations, and ensure that those individuals were receiving the FEMA services and were registering.

Even as late as now, we're still finding that there are many people who haven't registered. Some people think the numbers are exaggerated. It's anywhere from, you know, maybe ten to twenty thousand to upwards of forty or fifty. It just depends on who you ask. The different organizations have a different read on it, of course.

We also worked closely with the disabled community in east Texas. They would identify specific special needs. Examples would be an elderly woman who used a wheelchair. The ramp was completely blown away from her mobile home, so she had no way of getting into her home, although the home itself wasn't damaged. So they came to us and said, "Is it possible for you to quickly have an inspector come out, so we can get this fixed and have this woman be, have her home accessible?" So those were the kinds of things we were dealing with. We would call the organizations, and they would always give us contact information and phone numbers to reach these individuals.

It was interesting because when people met me, they'd always say, "Oh, how long have you been with FEMA?" and I would tell them I'm an EEOC employee, and I'm on detail. And they were always very open to me. They were happy to have me there. And they believed in EEOC's mission. Clearly, they believed that we were carrying out our mission because they found me credible from the very get-go. Very helpful for me but also gave me an added measure of responsibility towards these individuals who wanted something more than just a standard answer.

When we worked with the disaster recovery centers throughout Texas, what we would do is develop close relationships with the DRC managers, who then again would put us in contact with individuals who had had problems with the FEMA services or, if there had been housing issues in the area, if there had been issues with the hotels, they would tell us about those and we would be able to look into them further from there.

We also would conduct training for the FEMA employees on their equal rights and on diversity and sexual harassment training. This was difficult because they're trying to see people and respond to individuals' needs, applicants' needs and, at the same time, we're trying to train them. So that could get very complicated, but we wanted to make sure everyone was aware of their rights.

While crowds of applicants were no longer coming into the disaster recovery centers, they were seeing repeat visits from applicants. What became very clear is that after going through what people had seen, they wanted to speak to a person. They didn't want to be on the telephone, waiting on a 1-800 number. They didn't want to go on the Internet. They wanted to see a person, and they wanted to feel an assurance from another human being that things were going to be okay.

It was very difficult because one of my favorite things to do would be to speak to the applicants. I didn't think I'd cry. And they all had very touching stories. And sometimes something as simple as asking them, "How are you doing today? Are your needs being met? Is there anything we can do for you?" meant so much to them.

The discrimination that you encounter during these disasters, it's remarkable because, while the disaster brings out the absolute best in people, it also brings out the absolute worst. People were afraid of losing their homes. Even though their homes had not been demolished by the storms or by the hurricanes, people had no homes. Others had absolutely nothing. I sat in the Urban League in Houston one day and spoke with a woman, and she couldn't stop crying. The tears just kept flowing down her face because she said, "I've lost absolutely everything, and I don't know what I'm going to do," and she said, "The worst part is I'm one of the lucky ones because I had insurance and I have the wherewithal and the money that I need to get back on my feet, but it has been absolutely devastating."

And story after story like this would come up, and situations that clearly were discriminatory would be presented to us, and we would do our best and, oftentimes, the best we could do was to just be the presence of FEMA because when certain businesses would see that we were present or housing businesses would know that we were involved, their attitudes would change towards the applicants, towards the evacuees.

The one lesson I came away with is that the burden falls on each of us to make any difference that we possibly can, be it even as small as asking how someone is doing, be it as small as sending clothing that we have because, you know, you sit in a room while people were being registered, and someone would say, "Do you know where we can find a size ten, a pair of size ten shoes for men?" You know, it was this kind of thing where it was just a question of, "Do they even have my shoe size?"

Furniture was even an issue. People were in hotels, but they needed to move into apartments, but they didn't have furniture in their apartments, so they needed to work with the city or with FEMA to get the resources to have a bed to sleep on. So that's something that's going on, and, as we approach the December 1st deadline to move out of the hotels, this is a continued concern. And these are the kinds of things that, in the Equal Rights Office, we actually concerned ourselves with and we worked with the community to try and make sure that these needs were met.

The Katrina and Rita evacuees need our continued support. Although the survivor stories are no longer on the front page of the news, the needs remain in all of these states. I saw a lot of people with FEMA who were working diligently to meet these needs, but there just aren't enough people, and they just don't have enough hours in the day. It's my hope that EEOC employees were able to lighten the load for these other employees who've been working so hard and tirelessly on a continuous basis with the Katrina and Rita survivors.

I thank the Commission for the opportunity to allow EEOC employees to go out to the Gulf region and assist FEMA in these efforts. It has been the absolute best and most rewarding experience I've had in the federal government, and I'm truly appreciative for it. Thank you.

CHAIR DOMINGUEZ: Thank you very, very much, Ms. Villalobos, not only for your extraordinary personal account, very moving, but thank you on behalf of all of the individuals that you represent for just the extraordinary efforts that are going on beyond our immediate responsibilities which has to do with employment. Obviously, you looked at the basic needs of the employees.

And I wanted to take the time for this Commission meeting to really showcase. All of the Commissioners have been briefed. I've certainly been intimately involved, as have my fellow Commissioners, in all of the issues. But I think it's important for all of us to learn from every one of these situations. No two disasters are the same. 9/11 quite different from Katrina, quite different from Oklahoma bombing, quite different from the tornadoes, John, that you escaped just recently.

But I think it's important. It behooves the Commission to have lessons learned shared in the public. And I just wanted to take this time to personally commend John and the OFP team and all of the Commission employees who have volunteered and who have participated in dealing with just very basic human needs. Sometimes, I tell people the Challenger was brought down by the O-ring. It's the little things that are most important in life. You have to deal with the basics.

And so on behalf of the Commission, I just wanted to first publicly applaud your contributions and your efforts to bringing our staff back on its feet and not only to doing that but to feeling cared about and loved. And so thank you very much.

And with that, I'll open it up for comments to my fellow Commissioners, starting with the Vice Chair.

VICE CHAIR EARP: Thank you, Madam Chair. I just want to attach myself to the Chair's comments and say thank you also. It's perfectly okay to cry. In fact, I was going to compliment John. I think you've done such an outstanding job. I am in awe of your steadfastness because I know the first time you briefed me I was weeping all over the place, and John was steely, steely in his determination to not let my tears affect the job that he had to do. So I just want to thank you, both of you. Well done.

CHAIR DOMINGUEZ: Thank you, Madam Vice Chair. Commissioner Silverman?

COMMISSIONER SILVERMAN: I just wanted to publicly extend my sympathy to the victims of Katrina and the other hurricane because I haven't had a chance to do that. I want to thank you both. I mean, John, you are a blessing to this agency and so well suited, and we're so lucky to have you, such a caring, practical person, and thank you.

To Veronica, when I read that e-mail that Nick originally sent out looking for people to help, I thought, "Who in the world would respond to this?" I mean, the conditions were, you know, the descriptions, it just sounded so hard and difficult, and I was so heartened when we had so many people, a wait list I was told, and the incredible job you did and the experience. We're just so proud that you and other employees have stepped in, and it means so much to us. So often we hear about what went wrong and what people didn't do. And it's just always great to hear what went right and what we did do. And, obviously it's going to take a lot more work. But I just want to say thank you so much for everything you've done.

CHAIR DOMINGUEZ: Thank you, Commissioner. Commissioner Ishimaru?

COMMISSIONER ISHIMARU: Thank you, Madam Chair. I, too, join Commissioner Silverman in expressing sympathy to the victims of the hurricanes. I was always stunned by the steadfastness that people showed in light of the adversity, losing everything in many cases, and people have gone on with their lives, trying to make the best of it.

For our colleagues in New Orleans, we look forward to getting you back to work. I'm glad to hear from Keith's statement that the office will be re-opening. That's excellent news.

I especially want to thank the Chair. I think the efforts that were shown in the aftermath of Katrina hitting on that Monday and the fact that the Chair and her staff took immediate actions to deal with this was outstanding. It was generous support of our employees. It really embodied the model workplace as part of the Chair's five-point plan.

And I was also struck because this wasn't -- it would be easy to say, "Okay, we'll do this for a week," or, "We'll do it for a couple of days." But we've gone out of our way to make sure that our employees know that we are going to stand with them for the long run. And the office has been closed now for ten weeks, and people have been on the payroll, have been able to get a chance to get their life together. This was the right thing to do, and I am very proud, Madam Chair, that you stepped up and took the lead and did this. I think it's really outstanding. I think, frankly, it's a proper role of government when disasters hit. You have to step up. No one can plan for these things. These are literally acts of God that happen, and I think we've done the right thing here, and I was very proud to be associated with the agency because of that.

You know, I recall hearing on the radio right after it hit that companies in the private sector, some were doing some things, and then they stopped paying their employees. Part of it, it was for financial reasons; part of it was for policy reasons. But I think we did the right thing by sticking with our employees.

I'm also, you know, the stories about the FEMA details are very touching, and I think knowing what you went through and what your colleagues went through working for FEMA on detail are very important and go beyond just the e-mail that we get from John or Nick from time to time talking about what our people are doing. I'm glad to hear that a number of our employees have gone and come back. More are going. I'm glad we're able to help.

I also think that it shows the value of having face-to-face contact. I think that is invaluable, and I'm glad we were able to help there.

Could you answer a question for me about the role of FEMA and undocumented persons? I assume that people were not asked for their immigration status when they showed up for help. They may have been fearful, as you pointed out, but I would assume that people were in need, FEMA was there to help.

MS. VILLALOBOS: What would happen is you could register with FEMA if you had a certain documentation, and it varied, but Social Security number showing that you were a documented worker, that type of thing. There's a whole range of things. If they could not help you, they would send you to the Red Cross or to the Salvation Army, and they were always able, they didn't have to find out any information about that. In different states, I think it was the Red Cross was responsible for handing out housing vouchers.

In Texas, because of the way it was set up, some of that was the state government or the local government. And so it was a question of how they handled it. That actually did turn into almost a political question because of the way it was written up, so I would say that what always would happen is someone would be sent to the Red Cross if they could not register for FEMA services. That was the situation.

COMMISSIONER ISHIMARU: Madam Chair, can I ask John a couple of quick questions?

CHAIR DOMINGUEZ: Certainly, certainly, yes.

COMMISSIONER ISHIMARU: John, we talked about this during our briefings. Has there been any analysis done of where our charging parties who had filed with us before Katrina were and how many we may have lost touch with because they aren't living there anymore, they don't have phone service? Have we been able to do that? Have we been able to look to see where they say the lower 9th Ward has been more adversely impacted than other places, or are we basically handling this on a case-by-case basis?

MR. SCHMELZER: We will handle it on a case-by-case basis, but we did look to see where the charges were filed from when we went looking for a new or a temporary office. And so that played a major role in our determination.

Now, I think the data we used was not necessarily current but may be fiscal 2004 data and earlier because it just didn't have access to the 2005 data. So I can answer your question just partially.

COMMISSIONER ISHIMARU: Although I guess the problem now is, for many parts of the city, it no longer exists as a residential area. So I guess --

MR. SCHMELZER: That's correct. It will be difficult tracking down lots of charging parties, but I assume, as the office comes up, there are private services that we can contract with that somehow can do more sophisticated computer searches than we can to figure out where people are.

COMMISSIONER ISHIMARU: I know a lot of people dispersed, obviously, after the hurricanes hit and went to various parts of the country, were evacuated to various parts of the country. Have we made any systematic efforts through our other offices to outreach to people who were affected by Katrina and Rita to let them know what their rights are? I was always struck by people moving to places where there weren't minorities in large number and, if they were planning to stay there for the future, I often wondered what sort of future they would face. Have we done anything through our other offices in other parts of the country to reach out?

MR. SCHMELZER: I think we've just used our regular outreach programs to contact and alert those people as to their rights but nothing over and above, beyond that.

COMMISSIONER ISHIMARU: Okay. And the last question I have, there obviously will be a large effort made to rebuild the city and tremendous amounts of resources going on. Are we monitoring that situation to make sure that the anti-discrimination laws are still in effect, that they won't be waived, that contractors, companies doing business in New Orleans will be held to the same standards that they would in other parts of the country?

MR. SCHMELZER: Well, the New Orleans office is a veteran labor force, and they have deep roots in the community, and so they will know what's going on as far as contractors and employment profiles, etcetera. And if need be, they will take appropriate action. But right now, it's just too early.

COMMISSIONER ISHIMARU: Great. Thanks to both of you. Thank you, Madam Chair.

CHAIR DOMINGUEZ: Thank you, Commissioner. I am going to step out of role here for a second because I think I don't want to speak as a member of this body but as a member of the EEOC family, and I think I'd like to give everyone here and everyone listening in around an opportunity to give the wonderful efforts that our team has put together a round of applause and appreciation.


Thank you very, very much.

Okay. The next item on today's agenda is the revisions to the Employer Information Report, EEO-1 as we know it. And that will be presented first by Deidre Flippen, our Director of the Office of Research, Information and Planning.

We're also going to hear from Carol Miaskoff, the Director of the Coordination Division, the Office of Legal Counsel. She will be followed by Cynthia Pierre, Director of Field management Programs. And last, but certainly not least, our Deputy General Counsel, Jim Lee.

The EEO-1 report is an annual survey that has not been significantly revised since it was instituted by the Commission back in 1966. Now, this report must be cleared by OMB under the Paperwork Reduction Act every three years, I believe that's the time. As we know, this act is designed to minimize reporting burdens and taxpayer expenses by ensuring that whatever data the government collects is essential to the discharge of its responsibilities and cannot be obtained in any other manner.

We're here today to complete our work on a project that began long before I arrived at the Commission, and we want to deliberate and vote on a final proposal to revise the EEO-1 report. We've sought to devise a workable new form that collects data that will be useful, we believe will be useful to the Commission's mission. We recognize that, for the last several years, we've had extensive discussions, primarily with our sister agencies who also use this report, so there's been a lot of ongoing discussion back and forth.

So before turning to our presenters who are going to explain the revisions to this form and also will talk about the public comments that have been received during this rulemaking process, I particularly want to express my appreciation to the staff members who have worked so diligently on this proposal for several years now. From the Office of Research, Information and Planning, Deidre Flippen; from the Office of Legal Counsel, Carol Miaskoff; and their staffs. You really have done an exceptional job just trying to keep this very complex, very difficult issue explored and continued, and you've done it with great professionalism, thoroughness, thoughtfulness, and objectivity. So thank you for that.

And at this point, let me ask the first presenters to please come up. We'll start with Ms. Flippen.

MS. FLIPPEN: Good morning, Madam Chair, Madam Vice Chair, and Commissioners. My name is Deidre Flippen. I am the Director of the Office of Research, Information and Planning. I'm here to summarize the final proposed changes to the EEO-1 Employer Information Report that are before you for approval.

After consultation with the Office of Federal Contract Compliance Programs, OFCCP, on June 11th, 2003, EEOC published proposed changes to the EEO-1 Employer Information Report. These changes were required in order to comply with government wide revised standards on race and ethnicity issued by the Office of Management and Budget in October 1997, and revision of the EEO-1 job category definitions to comply with the revised OMB standards on standard occupational classification of 1999 and the 2000 Census occupational categories.

Consequently, EEOC proposed changes to the ethnic and racial categories on the EEO-1 report and also to the job categories. The Commission held a public hearing on October 29th, 2003 to give the public an opportunity to comment on the proposed changes.

The revisions proposed in the June 2003 notice are as follows: added a new racial category titled "Two or More Races not Hispanic or Latino;" by gender; separated Asians from Pacific Islanders; added a new category titled "Asians not Hispanic or Latino;" added a new category titled "Native Hawaiian or other Pacific Islander not Hispanic or Latino;" changed American Indian or Alaskan native to American Indian or Alaska native not Hispanic or Latino;" renamed Black as Black or African-American not Hispanic or Latino; renamed Hispanic as Hispanic or Latino; strongly encouraged employers to use self-reporting rather than visual identification; extended the EEO-1 data collection by race and ethnicity to the state of Hawaii; and changed the EEO-1 job categories by expanding the current single officials and managers category into three subcategories: executive senior level officials and managers, mid-level officials and managers, and, three, lower-level officials and managers.

The proposed revised EEO-1 report form seeks to balance several competing interests. These are to obtain data to support the EEOC and OFCCP in enforcing Title VII and Executive Order 11246, address changing United States demographics, comply with new OMB standards, and minimize the reporting burden on employers.

The changes from the June 2003 notice and the final proposed notice before the Commission are as follows: change the proposed officials and managers three subcategories of executive senior level officials and managers, mid-level officials and managers, and lower-level officials and managers to two subcategories titled "Executive Senior Level Officials and Managers," and, two, "First/Mid-Level Officials and Managers;" revise the EEO-1 instruction booklet which provides guidance to employers on completing the EEO-1 form by removing non-managerial business and financial occupations from the officials and managers job category and adding them to the professional job category; remove the "2000 Census Occupational Codes", which each EEO-1 job category grouping, and the EEO-1 instruction booklet. However, the proposal makes it clear that the EEOC will continue its past practice of producing a job classification guide for employers with guidance about the range of Census occupational codes for each broad EEO-1 job category and the Census EEO-1 crosswalk. Keep the order in which the EEO-1 job categories appear on the EEO-1 form the same as on the current form; eliminate the suggested questionnaire for re-surveying employer workforces; reduce the annual reporting burden hours from 644,320 to 599,000 or by seven percent; and change the effective date for use of the EEO-1 form from 2005 to 2007.

The EEO-1 report is a valuable tool in the Commission's enforcement activities and in conducting research. Other panel members will describe how EEO-1 data and information is used in our enforcement activities. Both internally and in academic settings, the EEO-1 is used to conduct various types of research.

The Office of Research, Information and Planning has published a number of research reports by various industries and occupational categories that have been well received by employers and the public. For example, "Women of Color: Their Employment Status in the Private Sector," "Diversity in Law Firms," "Retail Distribution Centers: How New Business Processes Impact Minority Labor Markets;" "High-End Department Stores: Their Access to and Use of Diverse Labor Markets;" and "Glass Ceilings: The Status of Women as Officials and Managers in the Private Sector."

In addition, we publish and distribute annually job patterns for minorities and women which provides aggregate EEO-1 data by industry and geographic areas and the biannual indicators of equal employment opportunity status and trends, which provides trends by job category, gender, race, ethnicity, industry, and geographic area.

With the exception of the indicators report, these reports are available to the public on our external web site at The indicators report is distributed and available upon request.

EEO-1 data is also provided to the Office of Federal Contract Compliance Programs and approximately 80 state and local fair employment practices agencies. Requests are also received from employer groups, the media, and the Government Accountability Office for articles and studies. Thank you.

CHAIR DOMINGUEZ: Thank you very much, Ms. Flippen. Now let's turn to Ms. Miaskoff. Carol.

MS. MIASKOFF: Thank you. Good morning, Madam Chair, Madam Vice-Chair, Commissioners. My name is Carol Miaskoff. I am the Assistant Legal Counsel for Coordination, and I'm here today to summarize the chronology and the circumstances leading to the proposed revised EEO-1 package that is before you today. As Ms. Flippen stated, the Commission published its initial Paperwork Reduction Act notice on June 11th, 2003, proposing changes to the EEO-1 report, and requesting public comments. During the 60-day comment period, 32 interested parties submitted comments, including civil rights organizations, employers, human resources and information technology professionals, and individuals.

The Commission held a public hearing about the proposal on October 29th, 2003, at which nine witnesses testified. Several parties submitted supplemental written comments after the public hearing.

The Office of Legal Counsel analyzed all of the comments and the testimony. A public meeting and Commission vote was scheduled for June 4th, 2004, on a proposed final EEO-1, but this meeting was postponed after the Chair met with civil rights groups to hear their concerns.

Subsequently, the Office of Legal Counsel Staff reviewed the entire record giving full consideration to all points of view. Additionally, coordination with OMB and OFCCP continued in the period between June, 2004 and the present. The purpose of today's meeting is to deliberate and vote on a proposed final EEO-1 package. The next step, after the Commission approves a final revised EEO-1 will be to publish it in the Federal Register for a 30-day comment period. There will be this additional comment period because this process is under the Paperwork Reduction Act. Comments will go directly to OMB, and OMB will then decide whether to approve or disapprove the revised EEO-1.

Now my primary role here today is to summarize the major themes in the public comments, and the responses to those comments that are presented in the final package that is before you. There are four major issues. The first one was the Commission's strong endorsement of self-identification of race and ethnicity rather than visual identification by the employer. The second was the Commission's adoption of a new racial category two or more races. The third was the Commission's decision to retain the current EEO-1 practice of reporting Hispanic or Latino employees only by ethnicity and not by race. And the final was the Commission's decision to divide the job category for officials and managers into three hierarchical subcategories. I'll discuss each issue, and then summarize the response in the EEO-1 package.

On self-identification, the original 2003 EEO-1 proposal stated a strong preference for employers to collect race and ethnic data by asking their employees to specify the ethnicity and the race they considered themselves to be. This preference was based on OMB's 1997 Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity, which I will call the 1997 revised standards.

Public comments objecting to this preference came from employers that expressed discomfort about potential employee reaction. Some employers also said that it would be burdensome to collect information in this way. One employer group requested an exemption from self-identification if doing so would prove unduly burdensome or otherwise not practical or feasible.

OMB's 1997 revised standards call for self-identification as the preferred method to collect data about ethnicity and race. This preference is linked to the guidance about giving individuals the opportunity to report more than one racial category. It is difficult to imagine how a continuation of visual identification by employers could be used to obtain accurate information about whether someone identifies with one race or more than one race. In the EEO-1 materials before you now, there is only one exception to this preference for self-identification, when employees decline to self-identify.

I will now turn to the central question here which is ethnicity and race, for ethnicity and race, which was whether to have a single category for everyone who self-identifies with more than one race, titled "Two or More Races". Clearly, there was extensive public comment on this issue. At the hearing, witnesses discussed the pros and cons of having a single category for all employees who chose to self-identify with two or more races, and also discussed the pros and cons of having categories for the four most common racial combinations, plus a residual, as drawn from OMB's 2000 guidance.

Civil rights organizations stated in strong terms that more detailed racial reporting was necessary in the interest of civil rights enforcement and full compliance with OMB guidance. Employer groups testified to the burden in both time and money that a detailed race and ethnic reporting scheme would impose. Finally, OFCCP said that adoption of the two or more races category would be consistent with their current use of EEO-1 data.

In weighing these different points of view, we turned to a consideration about what data would be most useful for EEOC’s enforcement program. As Ms. Flippen did and Ms. Pierre and Mr. Lee will explain, staff uses EEOC data in two major ways. First, we use it to analyze broad trends in female and minority employment on an industry, regional, or national basis. These are the studies to which Ms. Flippen referred.

Second, we use it to help make early assessments of the strength of charges, and later to compare racial, ethnic, and gender make-up of employees at a particular organization with that of employees of similar organizations in the investigation process.

In both of these instances, Commission staff uses EEO-1 data to find statistically significant disparities or trends between a particular employer and other employers, or among larger groups of employers. EEO-1 data is not intended and cannot provide information about how a specific employer's work force came to look as it does, because the EEO-1 is a snapshot of the payroll of the employer at one point in time, and it does not provide any information about individual employment decisions, such as hirings, firings, or promotions.

For the same basic reason, the EEO-1 also does not provide EEOC with the information to determine if a specific charge is with or without merit. EEO staff obtains that kind of detailed information from the employer during the investigation.

Of importance to this decision-making process was also the fact that in the 2000 census, only 2.4 percent of individuals reported that they were in a category that would fall under two or more races. The Census Bureau's modified numbers for the 2000 census restated that number as actually down to 1.4 percent of the population, with the largest subgroup being those under 13 who were at 2.4 percent. These percentages themselves included an array of unique racial combinations. In this context, where the total for all people in two or more races was small, but where the data was ultimately used to analyze broad trends or comparisons, the decision was made to retain the single category for two or more races.

The second important question concerning race and ethnicity was whether to change the EEO-1 to require employers to report racial information about employees who self-identified as Hispanic or Latino ethnicity. Employers have never been asked to report race data for Hispanic or Latino employees on the EEO-1. This became the subject for debate because OMB's 1997 revised standards advised the collection and maintenance of such data when the two-question format was used. The phrase "two-question format" means that when race and ethnicity, i.e., Hispanic or Latino, information are collected separately, the first question should be about ethnicity, and the second question should be about race.

In public comments on this issue, civil rights groups focused on the importance of having complete racial data available in order to combat all workplace discrimination. Most employer groups focused on the burden of collecting, maintaining, and reporting race data for Hispanic or Latino employees. Some employers stated that they might choose to collect racial data for Hispanic or Latino employees for research or statistical purposes, or to defend against potential EEO claims.

The 2000 census suggests that a small percentage of the population reported as Hispanic or Latino, and also as part of a racial category other than White or some other race. According to the 2000 census, a total of 3.6 percent of the Hispanic or Latino population reported their race as Black or American Indian, Alaskan Native, or Asian, or Native Hawaiian Pacific Islander. 42.2 percent of the Hispanic or Latino population reported their race as some other race, and 6.3 percent of the population reported their race as two or more races.

The Census Bureau itself is working to identify ways to collect more accurate data about race from individuals who report as Hispanic or Latino. Additionally, media reports in the last few years cited debate in society at-large about Hispanic or Latino individuals identifying with American racial groups. OFCCP also asserted that changing the EEO-1 to report the race of Hispanic or Latino employees would complicate its use of EEO-1 data.

Given these considerations, the final proposal reaffirms the initial decision not to require employers to report the race of employees who identify as Hispanic or Latino. The preamble to the final EEO-1 report, however, commends employers who choose to collect more detailed race information than is needed to complete the actual EEO-1 report.

Finally on race and ethnicity, the final EEO-1 package does not include the suggested questionnaire which was included in the 2003 proposal for employers to use when collecting race and ethnic information from employees. The preamble to the final EEO-1 report, however, sets forth two basic principles for employers to follow in collecting this information. First, to offer the employees the opportunity to self-identify; and two, to provide a statement to employees about the voluntary nature of the inquiry. A sample statement making these two points is included in the preamble. The preamble also adopts, as proposed in 2003, a two-question format, meaning that employees are first asked to report their Hispanic or Latino status, and second, to report the race or races they consider themselves to be.

The next major topic concerns job categories on the EEO-1, and specifically dividing officials and managers into subgroups. As Ms. Flippen said, the Commission originally proposed expanding the current category for officials and managers into three subcategories; executive senior level, mid-level, and first or lower level. In public comments and testimonies, employers raised concerns about how to divide officials and managers into the three categories, in particular, about the likelihood of inconsistent categorization of the middle level managers who perform the same functions but at different companies, and perhaps with different job titles.

We recognize that it would be difficult to consistently place the middle managers. We also, however, recognize that a single category for all officials and managers is no longer acceptable. Accordingly, the final EEO-1 package proposes two subcategories of officials and managers, executive senior level, and first/mid-level.

With respect to job categories, some commentors strenuously objected to the use of census job codes as a mandatory basis for sub-dividing officials and managers into these different subgroups. The final revised EEO-1 does not use census codes to define the subcategories. Instead, the final package explains that jobs should be assigned to each subcategory based on the job's level of responsibility and influence in the organizational hierarchy. There are detailed descriptions in the instruction booklet and in the preamble.

The proposed revised EEO-1 also moves business and financial occupations from officials and managers to professionals. This change will improve data for analyzing trends and mobility of minorities and women within the upper reaches of organizations.

Finally, there are two miscellaneous but significant issues. First, in terms of establishments in Hawaii; under the current EEO-1 report, i.e., the one employers would have completed this year, establishments located in Hawaii are not required to report the race and ethnicity of employees, but only reported employment data by gender. This exemption was spelled out in the current instruction booklet. The proposed final EEO-1 before you today does not exempt establishments in Hawaii from the reporting requirements. Employers will need to complete the revised EEO-1 reporting the gender, race, and ethnicity of employees for their establishments that are located in Hawaii.

The final issue I'll present is re-surveying. The EEO-1 package does not mandate that employers re-survey their entire workforce before submitting the first EEO-1 report in the new format. The goal is to minimize burden for employers while they are transitioning to the revised EEO-1 report. The preamble does, however, urge employers to use every opportunity to re-survey that arises in the normal course of business. The preamble also reminds employers to seek self-identification of all new employees under the new race and ethnic categories.

That concludes my presentation. Thank you very much.

CHAIR DOMINGUEZ: Thank you very much, Ms. Miaskoff. Ms. Pierre.

MS. PIERRE: Good morning, Madam Chair, Madam Vice-Chair, Commissioner Silverman, Commissioner Ishimaru, colleagues and guests. My name is Cynthia Pierre, and I am the Director of Field Management Programs in the Office of Field Programs. I was asked to give a brief statement today on how the EEO-1 is used in investigations, how its use has changed over the years, and what other tools investigators use in investigating systemic, class, and individual discrimination.

Having served most of my career in the field, including as a systemic investigator at one point in time, and most recently as a District Director, I would like to share my views on the topic by describing what approaches an investigator typically takes in conducting a systemic, a class, and an individual harm case. In particular, an individual harm case that has potential for expansion into a class case.

Systemic and class cases most often grow out of ongoing investigations of individual charges. Although outreach efforts and information provided by interested and knowledgeable third-parties also lead to systemic investigations, or investigations of pattern or practice, and other class cases. For example, in launching the investigation of a hiring or promotion case, we generally start with a request for the position statement and a request for information that would include request for copies of workforce profiles that would be annotated with the race, gender, and job title of all employees in the relevant facility or facilities. We would also ask for copies of applicant flow logs, if the employer is a federal contractor. If the employer is required to file an EEO-1 report, copies of the most recently available EEO-1 reports are accessible on the investigator's desktop.

This is a change from the past when investigators would have to request copies of the reports from the employer or from EEOC Headquarters. I can remember when I was a systemic investigator, the reports were kept in headquarters and we would have to have them faxed to us. And if we wanted to have a report run, the data was actually kept on a mainframe computer at NIH, and you had to have the number of a tape, and they had to carry the tape to the mainframe room to run the tape, and maybe overnight or a couple of days later you can get the report run, so we've come a long way since then to having this data on our desktop.

We would also employ on-site visits as investigator tools. We can schedule an on-site visit to the employer's facility that would allow a visual survey of the employee population. We would review applications on hand and interview witnesses. The investigator may also review the agency's charge database for similar allegations against the same employer. We may use the EEO Desktop software and the EEO census to conduct labor market analyses, compare the employer's profile with that of comparable employers in the relevant labor market in order to determine the existence of statistically significant disparities. We often would seek information or assistance from Headquarters Office of Research and Information Planning, if needed, as every investigator is not expert in this, but if you're not expert, we make sure that they know where they can call for assistance.

At the most, the investigator can only obtain a broad brush analysis of a company's workforce from EEO-1 data, but it is a starting point. Analyses by census occupational codes are needed to pinpoint particular job hiring or promotion patterns over time. Many hiring and promotion cases involve small employers who are not required to file EEO-1s. Also, many employers in the construction and agricultural industries do a lot of hiring, but often are too small to file EEO-1s. Depending on the type of employer, the investigator may obtain information on staffing from other sources, such as financial databases, annual reports, company newsletters, news articles and trade press articles, employer and industry websites, voluntary affirmative action plans, and other government records.

Of course, a key and sometimes overlooked source of information about an employer's workforce is the charging party and/or the charging party's witnesses. Charging party and witness information on employer policies or practices sometimes provide leads that compel expansion of an investigation from a single facility to a regional or nationwide scope. As you can see, it is usually more effective to take a multi-pronged approach to gathering data on an employer in order to get the most refined picture possible of its operations and its practices.

In the 1970s and the 1980s, there were several largely unsuccessful attempts at EEOC to use EEO-1 reports to identify employers with low representation of women and minorities. We found that the EEO-1 analyses alone often provided results that could not be sustained by field investigations, and did not justify the amount of time devoted to conducting the analyses. However, combined with other data sources and conducted at an appropriate stage in an investigation, the EEO-1 is a useful investigative tool.

CHAIR DOMINGUEZ: Thank you very much, Ms. Pierre. Mr. Lee.

MR. LEE: Thank you, Madam Chair, Vice-Chair, Commissioners. Some comments today regarding the Office of General Counsel's uses of EEO-1 data during the litigation of Commission cases. OGC recognizes that the EEO-1 report can help attorneys and investigators identify, in conjunction with other available evidence, employers that may be significantly under-employing women or minorities. It was, in fact, an OGC employee that created the Commission's internal EEO-1 Desktop software tool, and we support continuing efforts to improve staff access to EEO-1 data.

However, our enforcement litigation targets particular employment decisions for a particular actionable period. For example, hiring into management from say March 2001 to the present, in contrast, EEO-1 report categorizes current employees by sex, race, ethnicity, and job group at a single point in time. It's a snapshot that reflects an amalgam of employment decisions, hiring, transfers, promotions, discharges, voluntary resignations, et cetera, over time. Many of these employment decisions may be so old that they're not longer actionable. This problem with snapshot data was recognized almost as soon as statistical evidence was starting to be used in employment litigation going all the way back to the Supreme Court's decision in Hazelwood in 1977.

In addition to the temporal problem of using snapshots, frequently EEO-1 job groups are too broad to be useful in litigation. Professionals include doctors and lawyers, two positions clearly not in the same labor market, service workers include police, detectives, and janitors. In preparing for trial, we obtain personnel records often in electronic form that identify who is hired for what jobs, when they were hired, if possible, who else applied for those jobs. If applications do exist, we rely on census data to estimate -- if they don't exist, we rely on census to estimate availability. In addition, we frequently need information on the qualifications these people to prepare sound statistical analyses. In conclusion, while the EEO-1 report is useful in identifying cases where an employer is employing women or minorities in numbers markedly different than their availability in the labor market, it is just one tool in our arsenal. We find that relying on actual employment data produced by the employer during discovery proves most effective. Thank you very much.

CHAIR DOMINGUEZ: Thank you. Thank you, Jim. And let me just take a moment because we just received, I just received not too long ago the litigation results for FY 2005 and I just wanted to publicly commend the Office of General Counsel for another just banner year in its enforcement activities. Three hundred and eighty-three new lawsuits filed on the merits and thirty-three subpoena enforcement and other actions were taken during FY 2005.

Monetary recovery was $106,577,067, and I just think it's just a commendable, commendable --

MR. LEE: Counting every penny.

CHAIR DOMINGUEZ: I don't know how many cents, but that's just commendable, and I just wanted to take a moment to recognize that contribution. I also wanted to say that I have been working very closely with ORIP - Deidre's office - because I am a big advocate of the use of EEO-1 report for trending data, for issuing reports, and I don't know how I compare to other Chairs, but we've issued quite a number of them under my tenure and will continue. I think we have two or three more in the hopper, right, Deidre?

MS. FLIPPEN: Yes, we do.

CHAIR DOMINGUEZ: So I really think that EEO-1 report has tremendous value. I also have a very unique perspective that I bring to the EEO-1 report because, you see, I've used the EEO-1 report in very different venues: as a compliance officer in my earlier professional career; as Director of the OFCCP; as Director of EEO at Bank America Corporation where I had to compile hundreds and hundreds of these reports and also to collect the actual data in how people were being categorized; and, certainly, the last three years or so, four years now, at EEOC looking at how we use it. I wish I could say we use it uniformly and consistently. I think we're working towards that end, and Cynthia and I have talked about that, you know. Some offices use it more than others and so on.

And I have to say that EEO-1 report, without question, has just unquestionable historical value. There's no question about it. It began in 1966. It's almost as long as the whole history of the civil rights enforcement time period has been. Just a year after the Commission opened its doors, we put out that report.

Its early contributions to the development of EEO case law also is without doubt. I think early on we really relied on this tool significantly to identify opportunities for intervening in what could have been potential discriminatory actions.

But I believe that, today, we're here and we really have an unenviable task because we're trying to modernize a report that in many ways has been marginalized by changing environments, by the shifts in demographics, by improved technologies, and by the dramatic societal changes that we have all witnessed.

As Director of the Office of Federal Contract Compliance Programs, we relied on this report to schedule federal contractors for compliance reviews. We're told by our colleagues at OFCCP that they have far more refined tools that they use these days and, therefore, it's not a significant factor in their scheduling process.

As EEO director at Bank of America, I witnessed up-front and personal the difficulty in completing this report. It is not a science, it is an art. Lots and lots, particularly in the state of California, when you see a lot of individuals who are multi-racial who refuse to self identify, then the task falls on the employer to have to do the guesswork. And, of course, we know what guesswork leads to. Oftentimes, people are miscategorized. Whether you're a Hispanic, whether you're Arab-American, you could be categorized in a Hispanic category. If you're bi-racial, you could be miscategorized in a different category.

And, unfortunately, there's no other alternative. We have to, the law requires that we have 100 percent accounting, and so it's not a precise science that we're dealing with here. It is an art. It is an inaccurate art, I would say, because it doesn't really capture the facts as they truly are.

And, of course, we talk about the blending, the racial and the ethnic blendings, that makes up of our nation today, and what we’ve transpired over the last 40 years. We're also experiencing some generational resistance. You know, we're finding that Generations X and Y don't seem to have the same perspective on this document.

I was just completing the ACT form for my son, and there's all kinds of questions. There's like seven different categories. One is, "I don't know," the other one is, "I don't care. I'm not going to report it." My son looked at me and said, "What do I do? What do I do?" So I had to do a little coaching on him. And it would be important if everyone took the time to do that coaching, but the realities of our society are that that doesn't happen very often.

So we'll have a lot of issues: people wanting to be categorized in one or two or three boxes, people extending the hyphenated component of the American, so something-something-something American. I think that brings a concern that many people share and, certainly, I know this body does.

So I think that the question before us is what kind of a report, having heard all of the comments and how we use it and the value that this information provides. I think the question that was before the Commission really has to do with, well, how do you put together a report that continues to have some value, while recognizing its limitations? And a report that continues to balance the interests of the government to obtain data that it needs for its enforcement responsibilities, while recognizing that our responsibilities under the Paperwork Reduction Act really involve minimizing the burden, as well as the taxpayers' expenses, and making sure that this report doesn't overlap or isn't redundant in its value, in light of the other tools that we have available.

So it really is an unenviable task to modernize the report that's so valuable and so useful in many fronts but one that doesn't truly capture the realities of our times. If I had my druthers, I really would focus on collecting data for people with disabilities. Seventy-percent of the severely disabled are still unemployed. We can't capture that. The fastest-growing segment of discrimination is age and disability. We don't capture age data and, yet, we're seeing that many of our systemic cases involve age discrimination.

So there are lots of things that, if we had our druthers, we would contemplate if we could come up with an attainable realistic and economic way of doing it. But with those comments and observations, I will now turn to the Vice Chair for comments.

VICE CHAIR EARP: Thank you, Madam Chair. Thank you, Ms. Pierre, Ms. Miaskoff, and Ms. Flippen. You've answered in your statement most of the concerns that I had. I have a couple of questions, but, first, Ms. Flippen, I want to relate an incident that happened yesterday.

I was at TAPS in Cincinnati and a similar occurrence has happened about three or four times. Young reporter comes out to grill me about the Administration's commitment to equal opportunity. And at the end of the interview, I asked them do they cover beats other than diversity and EEO, and the conversation kind of goes from there. And in all cases, including the one yesterday, they asked me whether or not we've studied diversity and the media, and I say, "No, not yet, but if I hear that one more time I'll be suggesting it to our office that conducts such studies."

So I think, in light of all the Chair said and in light of what the panel has said about the ability to use EEO-1 for long-term forecasting and for trending, I certainly want to suggest a look at diversity in terms of the media broadly: newspapers, radios, television. Because at least on three or four occasions, the minority reporters who have come out to talk to me end up telling me how their beats are assigned, how they don't move forward.

A couple of questions --

MS. PIERRE: We did do a study on diversity in the media, and I think we did it in conjunction with the presentation that the Chair did.

VICE CHAIR EARP: At the minority --



MS. PIERRE: Maybe two years ago. So we have taken a look at that. I'm not sure if it's on our web site. I think it is on our web site.


MS. PIERRE: But we have taken a look at that because there's been a lot of interest in that.

VICE CHAIR EARP: A lot of interest. And, in fact, for two of the reporters whose cards I can immediately put my hands on, I want to make sure they get copies of the reports.

CHAIR DOMINGUEZ: And if I just might interject, I have had a couple of conversations with Anna Lopez, who is the Executive Director of Unity, which is the journalists of color, and she's expressed some concern, and she'll be meeting with us. We're contemplating holding a Commission meeting to discuss these same issues.

VICE CHAIR EARP: Excellent, excellent.

CHAIR DOMINGUEZ: Hopefully in not too distant future.

COMMISSIONER ISHIMARU: You've actually spoke to them a couple of years ago, didn't you? Yes.

VICE CHAIR EARP: Yes. I mentioned that and suggested that this reporter could probably go back to her national and get copies of the remarks from last year that you gave.


VICE CHAIR EARP: Well, that's great.

My question has to do with the intersection of process and timing, so I would ask either of the panelists, but I think, Ms. Miaskoff, you might be most familiar, to share with us a little bit more about what happened since last year when our meeting was postponed and where we are today and, having lost a year, continuing to look at this, why are we postponing implementation yet another year?

MS. MIASKOFF: Good question. Our meeting on June 4th, 2004 was postponed because representatives of various civil rights groups met with the Chair I think just a day or two before the scheduled meeting and, at that time, presented comments in person, as well as perhaps additional written material.

After the meeting, the Chair instructed staff to go back to the record, to obviously look carefully at what was presented at that point in time, but then also to go back and look at the complete set of comments and testimony that we had gotten throughout the process, which we did. So we went back and we looked at it, we analyzed it, we summarized it, we thought about it. And we also continued to coordinate on these issues and have conversations with our sister agencies: OMB primarily, as well as OFCCP.

And this process, you know, took over - obviously did take some time. These things always do. But it culminated in today's meeting.

And on your second question, in terms of delaying the implementation date to 2007, unfortunately, although we would like to say that it was delayed so long that, gee, couldn't we sort of cut short that delay, you, the reality remains that employers will have to implement the changes. They'll have to budget. They'll have to do it.

Additionally, with this vote today, there's not going to be a final read necessarily on what the EEO-1 report will be. You know, because this is a Paperwork Reduction Act process, there will be another round of comments that will go to OMB, and we will obviously get copies and review them.

And we don't know when this will become final, actually. So given that fact, we thought that 2007 was a reasonable date to say.

VICE CHAIR EARP: Okay, thank you.

CHAIR DOMINGUEZ: Commissioner Silverman?

COMMISSIONER SILVERMAN: Good morning. I first wanted to thank Cynthia, Carol, Deidre, and Jim for your comments today. I think it's really beneficial to hear from those who have been extensively involved in bringing this project to fruition and from those whose programs make use of the EEO-1 report.

As the speakers noted, the Commission uses the EEO-1 report to identify trends in employment, to help assess the overall strength of a particular charge and, lastly, to identify possible systemic discrimination. It is that last category that's of special interest to me. As many, if not all, of you know, I have been heading the Commission's taskforce on systemic discrimination. There are 16 members of the taskforce, and they were drawn from both the field and headquarters, including Cynthia Pierre who is on the panel today.

The taskforce has talked to people in headquarters. We've talked to people in the field, to stakeholders, and to members of the public to determine how to best attack systemic discrimination in the workplace. One of the issues that this taskforce is examining is how the Commission can better identify cases of systemic discrimination. Of course, the EEO-1 report is currently one of the tools that we use.

Now, let me speak for one moment as to what I've observed throughout all of this, and that is that there appears to me to be a debate raging both within our agency and among our staff and among our many stakeholders out there about the utility of the EEO-1 report. And I've noted that the opinions, and there are many and many people want to share them, seem to run the full gamut from marginal use at best to essential. And I think the answer lies somewhere in the middle.

While the EEO-1 report is a tool in the fight against discrimination in our workplace, it is a limited tool because, as other people have said here, it is a mere snapshot in time and because it does not necessarily divulge the entire story, and I don't think it can. Therefore, I believe that in its efforts to eradicate all types of discrimination, including systemic, the Commission should be using the EEO-1 in conjunction with the other tools at our disposal.

And I believe that there is more that this agency could do to make the EEO-1 data that we receive more accessible and useful for our staff. And that is an issue that my taskforce is working on.

So I believe that when we consider the proposed revisions to the EEO-1 form, we must carefully balance the relative usefulness of the information we are seeking with the burden that we are placing on employers. And I trust that we can and will strike a proper balance.

I want to again thank the panelists for your presentations today. And now I'd like to proceed to a few questions. And I'll start with one of my taskforce members, Cynthia.

Can you talk about whether the proposed revisions to the EEO-1 report will affect our ability to identify systemic discrimination?

MS. PIERRE: Looking at the proposed changes, I do not believe that they will have a significant impact. As Carol said in her remarks, the number of people who self-identifies two or more races right now in the Census is very small. And when we use the EEO-1 for statistical analyses, we are looking for statistically-significant disparities. In order to have those, we have to have sufficient numbers in a pool. So when the numbers are very small, we're not going to get results that will tell us anything. So as long as the two or more races numbers are very, very small, I've heard from 1.4 percent to 2.6 percent in the Census right now, that's not going to make a difference in the results we're looking at.

The other thing is that when we're looking at race data from the EEO-1 report, we're looking at them in conjunction usually with Census data to fill in the gaps. So I think that, keeping in mind that it's never going to be used alone but with other sources, it's not going to have a significantly negative impact, and we'll be able to work with it quite well.

COMMISSIONER SILVERMAN: Okay. My second question is again for you and also for Jim Lee. To what extent did plaintiffs' counsels use the EEO-1 and how will the change in the form impact them?

MS. FLIPPEN: Do you want me to start?


MS. FLIPPEN: Okay. To my knowledge, plaintiffs' counsel can only get access to EEO-1 reports if they're in a case file. When we do a file disclosure, if an EEO-1 is in a case file, plaintiffs' attorneys will get access to it then. And they get access to the case files after we issue a notice of right to sue. There's a 90-day period that they can ask for copies of the file.

If they request separately copies of EEO-1 reports, I believe they're not discloseable, but they can FOIA those reports. And that would go to Office of Legal Counsel. I guess Carol could explain what happens then. Aggregated data from EEO-1 reports are available, I guess, through the FOIA process. Do you want to add to that, Carol?

MS. MIASKOFF: Well, what I can add is that we inquired with our FOIA appeals staff here at headquarters who hear the appeal of FOIA decisions that are made in the field offices, and they indicated that what they see, they don't see many appeals seeking EEO-1 reports.

VICE CHAIR EARP: I just want to understand. Even the FOIA request is for aggregated data and not an individual company or no?

MS. MASTROIANNI: I don't know which hat I'm wearing, Madam Vice Chair. But let's assume that the EEO-1 form is not in the file. The charging party can FOIA, can submit a FOIA request for the particular EEO-1 form for the employer after they file suit. It's also possible to make a FOIA request for aggregate data.


COMMISSIONER ISHIMARU: Peggy, could I follow up on that? But if the charging party makes a FOIA request, it is routinely granted that they provide it, or is it on a case-by-case basis, or is it never?

MS. MASTROIANNI: Well, they're very, as I said before and I guess Carol mentioned, too, we have been able to find very few examples of FOIA requests from charging parties. But if a charging party, having filed suit, makes a FOIA request for the EEO-1 of the defendant, then that request is typically granted.



MR. LEE: Well, I don't think, as far as plaintiffs' counsel is concerned, that the approach and methodology to employment litigation differs from ours. You're still having to define the relevant labor market. You're having to use statistical methods that drill down to the job positions and questions rather than broad categories. So those steps are still necessary in order to make out a case whether it's our litigation or a private litigation.

COMMISSIONER SILVERMAN: Thank you. I have one other question. It's for Carol. OMB has issued guidance that you’ve talked about recommending the use of the five single race classifications, along with four highest dual race from the 2000 Census, and then a catch-all category. Can you talk a little bit more about what considerations went into the decision to include the catch-all category but not the four highest dual race groups?

MS. MIASKOFF: Well, the considerations that went into that, you know, have, I think, been spoken about before this morning, but they basically boil down to the fact that, for our enforcement program, we use the data in the larger categories and that, even were we to collect it in the 5-4-1 format, we would end up rolling it back together either into two or more or into the individual groups to use it. So the bottom line is that, for us, it would not have tremendous utility.

We also noted that in the 2000 OMB document, well, I guess actually in the '97 document, there's ongoing discussion about the treatment of multi-data involving individuals who report as multi-racial when the reports are aggregate data, like the EEO-1 report is. And in the 2000 guidance, it says that OMB will continue to work with individual agencies as they implement the guidance, and that is exactly what we did, is work with OMB.

COMMISSIONER SILVERMAN: So it's because we would have rolled the back-up when we talk to the sister agencies, and the purpose of the EEO-1 form is, for us and our enforcement?

MS. MIASKOFF: Yes, it is.


MS. MIASKOFF: You're welcome.

CHAIR DOMINGUEZ: And just to add, they too would have to roll it up, for example, OFCCP. MS. MIASKOFF: Right.


CHAIR DOMINGUEZ: All right. Thank you, Commissioner Silverman. Commissioner Ishimaru?

COMMISSIONER ISHIMARU: Thank you, Madam Chair. I have a written statement for the record that I ask be put in the record and be placed on the web site, as is our usual course. I note that my statement from July 8th was not posted due to a clerical error, and I thank the staff for posting it at the appropriate point on the web site. But I would ask that my written statement be made a part of the record, so I can not have to read the whole thing.


COMMISSIONER ISHIMARU: I appreciate that. The decision that faces us today is a test of our commitment, we have, as an agency and as a government, to finding employment discrimination and eradicating it. Sadly, when faced with an opportunity to enhance our enforcement tools, enlarge our knowledge about the increasing diversity of our workforce, improve our ability and private counsels' ability to examine employers' practices, the agency has chosen instead a reporting scheme that will hide data and the diversity that makes this country unique, all while putting employers in a state of uncertainty.

The agency's proposed changes to the EEO-1 reporting form, which collects data from employers about the demographic makeup of their workforces should not be approved. The EEOC, it is said, is the premier federal civil rights enforcement agency. I heard that when I came two years ago, and, after being here and meeting with our colleagues around the country, I truly believe that, especially today.

What we do here at the EEOC is looked at as the bellwether for civil rights enforcement. Other federal agencies will look at what we do and will follow along our path.

The Vice Chair talked about being accosted by members of the media during her visit to Cincinnati yesterday talking about the Administration's civil rights record. This is not a unique occurrence. In Sunday's paper, the lead story was talking about the occurrences at the Department of Justice, which has been under heavy criticism for its lax enforcement of civil rights laws. According to the Washington Post article, the employment litigation section of the Justice Department has filed only a handful of cases in recent years dealing with employment discrimination or discrimination based on the statistical impact on women or minority groups.

The weekends' newspapers also highlighted the Department of Justice's decision to challenge a university's fellowship program for minorities and women in Illinois and to approve a Georgia voter identification law that a federal judge found to be tantamount to a poll tax.

The EEOC has not been identified as one of these agencies on a similar path and, indeed, our numbers, as the Chair pointed out, of case filings has been vigorous and at historical levels. But I fear that the proposed changes to the EEO-1 form are disturbingly similar to the actions of other federal civil rights agencies in which they appear to be backing away from using strong enforcement tools to enforce our civil rights laws.

As I've tried to persuade my colleagues on this issue and in other conversations, it has become clear to me that there are some persistent myths that exist about the EEO-1. I believe it's imperative that these myths be laid to rest.

Myth One: EEO-1 data is not useful. EEO-1 data is a crucial civil rights enforcement tool. As the Equal Employment Advisory Council put it, the EEO-1 report is the most fundamental and wide-ranging of all the federal EEO and affirmative action reporting requirements impacting both those employers that are federal contractors and those that are not.

We've already heard today some of the ways that the EEOC uses this data. I would like to point out that there are several more. The EEOC dictates the baseline of data that employers will collect. It is used in litigation for pattern or practice cases, including the currently ongoing case against Wal-Mart. It is used in research by academics and the EEOC to track segregation in the workforce. It is used by Commissioners in targeting to develop Commissioners charges. I know that I've used it myself. It is used by EEOC investigators to help analyze charging parties' allegations.

Before I go to myth number two, let me tell you what is the most egregious thing about this proposal. The proposal in front of us contains a new racial category, two or more races, that hides race and pretends that there are no differences between races. Lumping all the different people who identify as having more than one racial background together does not comport with the reality of employment discrimination and does not assist with civil rights enforcement.

As is clear from our own agency panels on the realities and opportunities in the workplace and the work this agency does everyday, someone who is African-American and White will have different issues and face different biases than someone who is Asian-American and White, yet on the EEO-1 they will be treated the same.

Placing these disparate individuals in the same group ignores the obvious distinction. To pretend that Asians, Blacks, native Hawaiians and Pacific Islanders, and American Indians face the same type of discrimination is to ignore the unique history of each group and the history of discrimination in our nation. It is a path, unfortunately, reminiscent of Ward Connerly's Racial Privacy Initiative in California, which sought to ban all data on race collection with the theory that not seeing the data would somehow improve race relations. People of California rejected that initiative.

Back in the 1980s, when I started doing civil rights work, opponents of civil rights said, "We should not collect this data at all. We should just be color blind and move forward," and we fought them because data is important for enforcement of our civil rights laws.

Ignoring to which two or more races a person belongs will not increase racial tolerance. It will ensure that a person will not be counted.

Myth Two: the data this proposal hides does not matter for civil rights enforcement. If this proposal is implemented, the EEOC will lose a significant amount of data regarding minority populations. According to the Census, the population of those identifying with more than one race is approximately 54 percent of native Hawaiian and Pacific Islanders; 40 percent of American Indians; 14 percent of Asians; and 5 percent of Blacks.

And the loss of data will only increase. Four percent of those under 18 identify as two or more races, which is twice the percentage in the 18 and over category. Twenty-four percent of Asians under the age of 18 identify as two or more races.

The data loss varies depending on the location. For example, two or more races is 21 percent of the population of Hawaii; 5 percent of the population of California; 4.5 percent of the population of Oklahoma; 15 percent of Honolulu; 5 percent of New York City; and 5 percent of Los Angeles.

As a parent of children who can choose two or more race boxes, I thoroughly understand and appreciate that allowing my children to check all the boxes that represent them is an important aspect of allowing them to acknowledge their unique heritage. The price of my children acknowledging their full racial heritage, however, should not be as this proposal would have it, and they are hidden from our analysis.

Myth Number Three: our proposal comports with federal guidance on race data collection. I started working on this issue in the mid-90's, when I was at the Department of Justice. It is one of the most difficult issues I have dealt with during my career. In 1997, as Carol has stated, and in 2000, the Office of Management and Budget issued documents that govern race collection data by the federal government for civil rights purposes. All three of these documents are, I believe, continuing Administration policy and continue to be on the White House OMB web site.

Certainly, the Administration could have rescinded this data if it did not reflect Administration policy. But I have to assume that the policy that was issued in 1997 and in 2000 continues to be Administration policy today. It may be clear, however, from the content of the proposal before us that the principles articulated in 1997 and 2000 may be flaunted at will.

OMB's established policy on the issue of multi-race individuals and civil rights could not be clearer. Multi-racial individuals are allowed to select the racial group that represents them and are not to be consolidated into an undefined multi-racial group. OMB's guidance on its policy specifically mentions civil rights enforcement. It also set forth how individuals in the dual race groups should be allocated for civil rights enforcement purposes.

This allocation procedure requires knowing to which dual race group the individual belongs. Following this allocation guidance is impossible for the EEOC if we use the proposed two or more race group, and nowhere in the guidance does OMB contemplate or condone a two or more race group.

OMB's December 2000 guidance contains an entire chapter on EEO data collection. It provides, "Individuals will be permitted to report one or more races on applications and other forms pertaining to their employment." It states, "In redesigning EEO forms to comply with the 1997 standards, the following categories will be recommended for EEO data collection and record-keeping: American Indian and Alaskan native; Asian; Black or African-American; native Hawaiian or Pacific Islander; White; American Indian or Alaska native and White; Asian and White; Black or African-American and White; American Indian or Alaska native and Black or African-American. And, finally, a balance of individuals reporting more than one race.

Similarly, our current proposal does not require employers to report the race of their Hispanic employees, leading, of course, to employers failing to collect this information. Again, OMB's guidance is clear. "Under the 1997 standards, Hispanic or Latino is clearly designed - clearly designated - as an ethnicity and not as a race. Whether or not an individual is Hispanic or Latino, every effort should be made to ascertain the race or races to which an individual identifies." While there are exceptions to this requirement, they should not apply when self-identification and the two-part question are used. And our form claims to use both.

Nothing in the proposal in front of us today explains why OMB's policy is not being followed or how those in the two or more race group will be allocated for enforcement purposes. This glaring lack of information is even more troubling because the proposal today does not tell employers to follow OMB's guidance either, effectively hiding this data that OMB, officially anyway, wants preserved.

Myth Number Four: uncertainty helps employers. What employers want is a clear system that will give them useful data and will not change. This proposal delivers neither. The data we are asking them to collect, as the employers' own comments show, is of questionable value. According to Bank One, two or more is so ambiguous that it is not a valid tool for employers who are trying to ascertain workforce under-utilization and adverse impact. Accurate race data is an essential element to the implementation of successful affirmative action plans.

According to the Society for Human Resources Management, simply stated, "The proposed form will be an unreliable and inconsistent data collection tool." And we leave open the possibility of further change, depending on an internal EEOC review of our own charge data and, presumably, the results of the 2010 Census.

Myth Number Five: our attention should be only on the glass ceiling. The proposal today splits the highest-level managers off from other managers, a move that will help us analyze glass ceiling discrimination, which I think is good. But despite suggestions from the civil rights community, we do nothing for the other end of the spectrum, what I call the sticky floor. Currently, service workers are one of the fastest-growing segments of the workforce, but within the large category of service workers are some who are much better paid and more likely to be White. We should have looked at this category to stratify it more so our enforcement efforts could have been more helpful.

I'd like to address for a minute, which is in my written statement, the cost estimates that are in the proposal. I'm not going to go into the math here because, as my staff pointed out, people don't have calculators, don't have calculators in front of them. But the current cost estimate, which works out to $45 a form, $171 per employer, the proposed form has a projected annual cost of $11.4 million, which works out to $67 a form or $253 an employer.

By my calculations, using the assumptions in the preamble, collecting race data in the 5-4-1 method prescribed by OMB would have cost $15.4 million or $91 a form or $341 an employer. Twenty-four dollars, the difference between the proposed cost in our proposal and the 5-4-1 cost that we estimate for full race information is a bargain. I think my kids are worth the twenty-four bucks.

Before I conclude, let me note that, for the record, Senator Kennedy, the Leadership Conference on Civil Rights, the Mexican-American Legal Defense Fund, and the Asian-American Justice Center have sent in letters opposing this, which I believe will be placed in the file that covers comments that we get on this rule.

Finally, with this new EEO-1 form, I fear we are sending the clear message that we will follow in the footsteps of the agencies that are backing away from strong enforcement of our civil rights laws. We are watering down our own enforcement tools and signaling that measuring race and job segregation is simply not that important to us. I am, frankly, surprised that my colleagues are willing to support this issue because, while we may strenuously disagree on certain policy matters and on spending and access to information, I found that all of us frequently agree on our enforcement matters. For the good of civil rights enforcement and our nation, I urge my colleagues to vote no.

I have a number of questions, Madam Chair. Could I ask --


COMMISSIONER ISHIMARU: -- just a few? Thank you. Under this proposal -- probably Carol is the right person to ask. Under this proposal, are employers permitted to collect race and ethnicity data from their employees by handing them a piece of paper that says mark one and lists American-Indian, Asian, Black, Hispanic, Native American, or other Pacific Islander, or White?

MS. MIASKOFF: I think the accurate answer is that they're not prohibited from doing so. However, we encourage them to use the two-question format in everything that means, which means two questions, please answer, first, ethnicity; and then, second, for everyone to please answer race.

COMMISSIONER ISHIMARU: But there's no prohibition on asking the question the way that I styled?

MS. MIASKOFF: That's correct.

COMMISSIONER ISHIMARU: What will employers get? Will they get both the preamble or the instruction book?

MS. MIASKOFF: They will get both the preamble and the instruction booklet.

COMMISSIONER ISHIMARU: You had mentioned, too, Carol, for the first time private employers in Hawaii will be asked to collect race and ethnicity data from their employees. Until now, they've only been required to report gender data. Why was this change made?

MS. MIASKOFF: It was changed because it was time to bring the survey in Hawaii up to the point where the survey was being done in the rest of the country. I mean, when you look at it and think about it, the fact that Hawaii, one of the states, was only being surveyed by gender. That was something that needed to be changed.

COMMISSIONER ISHIMARU: But I talked earlier in my statement about the high number of multi-racial people who live in Hawaii and now, if we collect it in one group, what sort of value will this data provide this agency? Is this a useful exercise?

MS. MIASKOFF: It will provide added incremental value. I realize totally, and I think we all do, the fact that the high multi-racial population, the crossovers in Hawaii, will not be reported in their detail on the current form. However, it's an incremental process. This is bringing them from virtually nothing up to at least where everyone else is. And additionally, the other options were clearly considered but not adopted, which would be more detail universally, you know, across the whole rubric.

COMMISSIONER ISHIMARU: Right. And you had mentioned earlier that we would look at comments that would go to OMB, assuming that the Commission votes to approve this final rule.

MS. MIASKOFF: Absolutely.

COMMISSIONER ISHIMARU: Do we further comment to OMB about those comments? Do we have a formal role in that process?

MS. MIASKOFF: We don't have a formal role in that process, no.

COMMISSIONER ISHIMARU: But we're free to comment either way to OMB, to weigh in, knowing what these public comments that are part of the public record are saying?

MS. MIASKOFF: Well, we don't weigh, I don't think that we would weigh in as a, you know, a Commission in terms of the Commission voting on a position on the comments. Probably, the kind of staff level back and forth that, you know, the coordination that has gone on all along with OMB would continue to go on.

COMMISSIONER ISHIMARU: Well, thank you very much. I thank the panel, including Mr. Lee. And Madam Chair, I thank you for allowing me to make a longer statement than normal. I appreciate the courtesy.

CHAIR DOMINGUEZ: Thank you for your comments. Okay. There being no further business today, is there a motion to approve the revisions to the EEO-1 report?


COMMISSIONER ISHIMARU: I was going to move that we adjourn.

CHAIR DOMINGUEZ: Is there a second?


CHAIR DOMINGUEZ: Okay. Is there any discussion? Hearing none, all those in favor, please -- let's do a roll call. Not a recall, a roll call. Madam Vice Chair?

VICE CHAIR EARP: I vote yes, with the understanding that this is not a perfect form, and I don't think any of us think that it is, and with the understanding that it is not the be-all and end-all to enforcement but with the caveat that it is another step, it is another step. I vote yes.

CHAIR DOMINGUEZ: Thank you. Commissioner Silverman?

COMMISSIONER SILVERMAN: I vote yes. Since we're adding comments, I would just say I don't think anyone is going to think we're watering down tools when my systemic taskforce finishes.

CHAIR DOMINGUEZ: Okay. I, too, vote yes, and I echo the Vice Chair's comments. I think you just wait until next year and the year after that, and I think whatever concerns may exist out there about any kind of diminution of our enforcement will be put to rest very shortly. So I vote yes.

COMMISSIONER ISHIMARU: And I vote no without caveat or reservation.

CHAIR DOMINGUEZ: All right. So the ayes have it. Three in favor, one opposed.

COMMISSIONER ISHIMARU: Madam Chair, could I ask that, now that we've voted to approve this, that the statements and transcript be made available and posted as quickly as possible? I don't know when the clock starts for this OMB review, but I would imagine that there's a lot of interest out there in people knowing what was said at this meeting.


COMMISSIONER ISHIMARU: And I would hope that we quickly could do this so everyone knows what happened here because, obviously, this does not represent the interest in the country about this issue. It's a very important issue that raises great passions, and I think the more we can do to facilitate people's knowledge of what went on here today the better.

CHAIR DOMINGUEZ: That's a good -- I have no objections. We'd like to see it posted as soon as possible.

COMMISSIONER ISHIMARU: I thank you, Madam Chair.

CHAIR DOMINGUEZ: Well, thank you, everyone, for joining us today. Again, I think we've had a very full and complete discussion. There being no further business, do I hear a motion to adjourn the meeting?


CHAIR DOMINGUEZ: Is there a second?


CHAIR DOMINGUEZ: All in favor?

(Chorus of ayes.)


(No response.)

CHAIR DOMINGUEZ: The ayes have it. Thank you all very much.

(Whereupon, the foregoing matter was concluded at 12:29 p.m.)

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