Meeting of February 28, 2007, Washington D.C. to Launch E-Race Initiative
I was encouraged in my work as Regional Attorney by the Equal Employment Opportunity Commission’s (“EEOC”) issuance on April 19, 2006 of the new Compliance Manual section on race and color discrimination. That action signaled to me and to our staff attorneys that EEOC, as an agency, remains united and committed to the struggle against racism on the job in America.
It is a signal that ought not to be obscured by all of the other good work that we do. Our Chair, Naomi Earp, was right when she said, as Vice-Chair, that “Although employment opportunities for people of color have improved dramatically over the years since 1964, EEOC’s job . . . will not be completed until all of our nation’s workplaces are free of unlawful discrimination.”
Let no one doubt it. This agency has, with almost unbelievably limited resources, done an enormous amount of good work. EEOC has created the gold standard in sexual harassment litigation and opened the door to women in virtually every job category. EEOC has said that, in times of economic stress, employers cannot balance their books on the backs of older workers, and we are today vigorously continuing the battle against age discrimination(3). EEOC pioneered litigation under the Americans with Disabilities Act. We have challenged discrimination against Hispanics in agriculture and wherever else fear and exploitation have put them at risk. At a time when a spirit of retribution and revenge could have invaded our nation’s workplaces, EEOC stood up for the rule of law and the principle that Title VII protects the Muslim as well the Methodist, the Arab as well as the Asian.
But we ought never to lose sight of the fact that slavery, the Civil War, the long and shameful history of segregation, and discrimination on the basis of race and color occupy a special place in our nation’s history and development. Race and color discrimination haunt us to this very day.
This has got to matter to us as an agency because, as the first paragraph of the new section of the Compliance Manual tells us, “With the enactment of the Civil Rights Act of 1964, Congress sought to eliminate the problems of segregation and discrimination in the United States. The impetus for the Act was the civil rights movement of the 1950's and 1960's, which challenged the denial of the rights of Blacks to participate equally in society.”
Race and color bias have depth and persistence. They continue to appear across the spectrum in employment. When I joined the EEOC in 1981, I began work on EEOC v. Chicago Miniature Lamp Works, a class case in which we were challenging race discrimination in recruitment and hiring(4). We have continued, over the years, to mount class challenges to race discrimination in recruitment and hiring. Examples are EEOC v. Worlds Finest Chocolate(5) and EEOC v. Ingersoll(6) and other more recent cases, including EEOC v. Carl Buddig Meats(7) and EEOC v. Abercrombie & Fitch(8)–the last being a case in which Chicago partnered with the Los Angeles District Office, foreshadowing, as we had in other cases, the national law firm concept articulated in the Systemic Task Force Report.(9)
Race discrimination in hiring has not gone away. In the spring of 2006, in one of our first major class case filings since the recent repositioning, we filed suit in the Southern District of Iowa in EEOC v. Von Maur Department Stores.(10) This is a case in which, our pre-suit administrative investigation found, a Black applicant for a warehouse position, with superior qualifications can wait two hours for a two or three minute interview and no job offer, while white applicants wait less, are interviewed longer and walk out with jobs in their pockets.(11)
It is a case in which the employer tells us that one of the reasons a Black applicant was rejected was “poor penmanship.” One Black woman was turned down for a job, supposedly, for giving an unsatisfactory answer to an interview question. A question not even asked, or if asked, not answered by 15 white hires–and answered virtually identically by another white hire.
It is a case in which, our administrative investigation indicated, another Black applicant was told his application came too late, even though Von Maur continued to solicit and accept applications and continued hiring less qualified white applicants.
We also continue to see race discrimination against African-Americans who somehow do manage to thread the hiring process–that is, in terminations. On September 15 last year our Milwaukee Area Office filed suit In EEOC v. Area Erectors, Inc(12). Area Erectors is a sizable player in the construction industry that erects steel and pre-cast concrete in Wisconsin and Illinois. The Charging Party is a Rockford, Illinois ironworker, Giles Jefferson, who is here with me today.
Earlier, in March of 2004, our Milwaukee office had successfully pursued a claim that Jefferson was the victim of discriminatory harassment and discharge by another building contractor. When his union sent Jefferson to a Janesville, Wisconsin construction job site in June of 2004, news of his previously filing a charge with the EEOC appeared to have preceded him. According to Jefferson, on his third day on the job site, an Area Erectors’ foreman approached him and told him that filing charges of discrimination was a “no-no.” Later the same day, Jefferson was terminated, and, EEOC’s administrative investigation revealed, he was replaced by another white worker from his own local who continued to work the same job site for another month.
That same investigation concluded that there was also reasonable cause to believe that Area Erectors discriminated against African-Americans as a class in terminations. That is, not only was the number of Blacks employed by Area Erectors insignificant, in the single digits, their life span on the job was very short indeed. For example, the data indicated that for one 10 month period in 2003 and 2004 the median number of days worked by white employees 65, but for Blacks it was only 18.5.
Why was that? Our position in the litigation is that it is because those few African-American employees who did manage to get referred by their union and to get hired were thereafter being terminated because of their race.
The point I want to make is that the issues of race and color discrimination continue to be at the top of our agenda. But notwithstanding our successes in challenging such discrimination, it remains invasive. Equality of opportunity in access to the workplace is not the same as equality of opportunity in the workplace. Discrimination in the areas of pay, promotion, job assignment and terminations continue. Earlier this month, we received final approval from the federal district court in Rockford, Illinois of a $5 million consent decree designed to remedy compensation, training, and job assignment discrimination against African-Americans, as well Hispanics and Asians and women.(13)
In South Dakota–which is, since the January 1, 2006 “repositioning” of EEOC, now a part of the “new” Chicago District–we are challenging Sara Lee’s discriminatory failure to move Black employees into foreman jobs.(14)
Racial harassment continues to be a problem.(15) Nooses are still hung from factory piping, placed in lunch boxes, and drawn around the necks of photographs of Black children.
My sense is that litigation remains essential–as does broad public dissemination of the results of our litigation program. I support EEOC’s mediation program and the extraordinary results it has achieved. I am a proponent of vigorous technical assistance and outreach. I know that skilled investigations and conciliations are absolutely critical. But, in the end, EEOC is a law enforcement agency. When preventative and voluntary measures are ineffective or inappropriate, we must challenge employment discrimination on the basis of race and color in the federal courts.
Whenever possible, our cases in the federal courts should make a difference in the work lives of multiple victims of discrimination. Our own history and the Systemic Task Force Report remind us that our mission is to challenge enduring and systemic employment discrimination–including, absolutely, discrimination on the basis of race and color.(17)
I am convinced that if we do that we will have the unflinching support of the American people. I believe that the Civil Rights Act of 1964 really did reflect a national consensus against employment discrimination. I believe that consensus endures to this day. I believe that we at EEOC are privileged, every day, to work toward the day that consensus approaches reality.
(1) Mr. Hendrickson’s remarks are made exclusively in his individual and personal capacity and not on behalf of the EEOC and they do not necessarily reflect the views of the EEOC or any official of the EEOC.
(2) Since the “repositioning” of the EEOC which became effective January 1, 2006, the Chicago District has included the states of Illinois, Wisconsin, Minnesota, Iowa, North Dakota, and South Dakota. Three offices serve the District: the Chicago District Office, the Milwaukee Area Office, and the Minneapolis Area Office. The author is the Regional Attorney responsible litigation in the “repositioned” Chicago District. The District Director is John P. Rowe.
(3) Over time, the statutory coverage issues being addressed in the Chicago District Office’s Sidley & Austin (N.D. Illinois No. 05 C 0208) age discrimination litigation may result in the application of Title VII’s prohibitions of race and color discrimination to high level positions in “mega-firm” professional service “partnerships” and comparable organizations which have not previously demonstrated a sense of urgency with respect to any nexus between the principles of the federal employment discrimination laws and their high level positions. See generally EEOC v. Sidley Austin Brown & Wood, 406 F.Supp.2d 991 (N.D. Ill. 2005), 437 F.3d 695 (7th Cir. 2006), cert. denied No. 05-1481, 549 U.S. ___ (10/2/2006).
(4) Although the U.S. Court of Appeals for the Seventh Circuit reversed the District Court’s merits decision in favor of EEOC, the case continues to stand, with its progeny, for important principles in employment discrimination litigation (e.g., that defendant-employers cannot “litigate” the agency’s administrative proceedings in Title VII lawsuits, that an individual charge of discrimination may be the predicate of a class determination and lawsuit, and that an investigation begun with respect to one issue (e.g., promotion) may be reasonably expanded to include others (e.g., recruitment and hiring)).
(5) Resolved by a November 1991 Consent Decree providing for over $2 million in monetary relief for approximately 400 class members and injunctive relief.
(6) Resolved by a November 1999 Consent Decree providing monetary relief in the amount of $1.8 million for approximately 400 class members and injunctive relief.
(7) Resolved by a September 2004 Consent Decree providing monetary relief in the amount of $2.5 million for approximately 300 class members and injunctive relief.
(8) Resolved by a November 2004 Consent Decree providing monetary relief in the amount of $50 million for thousands of class members and injunctive relief.
(9) Chicago had previously partnered with the Phoenix District Office in EEOC v. Allied Signal, a class age discrimination case which was resolved by a November 1999 Consent Decree providing monetary relief in the amount of $8 million for approximately 350 class members and injunctive relief. Chicago also shared resources with the New York District Office in covering depositions in EEOC v. Mitsubishi Motor Manufacturing of America and in EEOC v. Morgan Stanley.
(10) Suit filed April 19, 2006. Civil Action No. 06-C-182.
(11) The facts regarding the Von Maur and Area Erectors cases referred to in these remarks are based upon the statutory administrative investigation of the underlying Charges of Discrimination which were supervised by District Director John Rowe. “Reasonable cause” Determinations were issued by the Director in both cases.
(12) EEOC v. Area Erectors, Inc., W.D. Wisconsin, No. 06-0516-C, filed 9/15/2006.
(13) Bell, et al and EEOC v. Woodward Governor Company, N.D. Illinois, W. Div. Nos. 03 C 50190 and 06 C 50178 (consent decree approved 2/16/2007).
(14) EEOC v. Sara Lee Corporation d/b/a Sara Lee Bakery Group, D. South Dakota No. 06-4176.
(15) Racial harassment was an issue in EEOC v. Cracker Barrel, a racial and sexual harassment case involving three Illinois facilities of the famous restaurant chain, which was resolved by a March 2006 Consent Decree providing monetary relief in the amount of $2 million for approximately 50 class members. In that case, one of the allegations was that management assigned Black servers to wait on Black customers.
(16) Because of EEOC’s limited resources, the number of lawsuits filed (371 nationally in fiscal year 2006) remains small compared to the thousands of Charges of Discrimination received (in excess of 70,000 annually)–and compared to the widely acknowledged persistence of employment discrimination. Therefore, each suit filing and resolution must, in addition to serving the individual private interests of the Charging Party(ies) and class members, also serve the public interest (see EEOC v. Waffle House) by deterring other employers from discriminating and encouraging other victims of discrimination to exercise their rights under federal statutes. EEOC’s issuance of press releases regarding all suit filings and resolutions well serves these dual public interest objectives. Further, and critically, it does so in a fair and even-handed way since no employer or its counsel is given reason to complain that it is being treated less favorably than any other employer as far as the issuance of press releases is concerned. (Of course, the fact that the EEOC is a federal agency which operates at the expense of the taxpayers also supports the notion that EEOC should publicly disseminate–in as readily accessible, “user friendly” ways as possible–news about what EEOC is doing.)
(17) This means, of course, that we ought to seize opportunities for class and pattern or practice litigation even though it may be more difficult and more resource intensive. We must also recognize the implications of pursuing large and complex class litigation. A primary one is that the agency must dedicate the necessary resources in both attorney and support personnel and in litigation support funding. A secondary one is that “score keeping” on Office of General Counsel and field Legal Division performance by counting annual new suit filings will not accurately measure what we are doing or how well we are doing it.
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