The U.S. Equal Employment Opportunity Commission

Meeting of July 22, 2008 - Issues Facing Asian Americans and Pacific Islanders (AAPIs) in the Federal Workplace and Compliance Manual Chapter on Religious Discrimination





RONALD COOPER General Counsel
REED RUSSELL Legal Counsel

This transcript was produced from a video tape provided by the Equal Employment Opportunity Commission.


Announcement of Notation Votes

Issues Facing Asian Americans and Pacific
Islanders in the Federal Workplace - Invited

Carlton Hadden, Director of the EEOC
Office of Federal Operations

John Palguta, Vice President,
Partnership for Public Service

Paul Ong, Ph.D., Director, UC AAPI Policy
Multi.campus Research Program, University
of California, Los Angeles

Sharon Goto, Ph.D., Associate Professor
of Psychology and Asian.American Studies,
Pomona College

Kuan-The Jeang, M.D., Ph.D., National
Institutes of Health

John Lee, President of the National
Association of Asian.American Law
Enforcement Commanders

Dr. Arun Basu, Former Senior Executive
with the Natural Resources and Conservation
Service, U.S. Department of Agriculture

Sharon Wong, Special Assistant for
Diversity, Goddard Space Flight Center,
National Aeronautics and Space Administration

Linda Bradford.Washington, Director,
Office of Departmental Equal Employment Opportunity,
U.S. Department of Housing and Urban Development

Compliance Manual Section on
Religious Discrimination

Peggy Mastroianni, Associated Legal
Counsel, OLC

Dianna Johnston, Associated Legal
Counsel, OLC

Jeanne Goldberg, Attorney Advisor, OLC

Resolution Honoring Ethel Lee Kendrick
on her retirement

Diane Dillon, Director, OCLA



10:04 a.m.

CHAIR EARP: Good morning everyone. The meeting will now come to order. Thank you all very much for being here this morning. In accordance with the Sunshine Act, today's meeting is open to public observation of the Commission's deliberations and voting.

Before I ask Bernadette Wilson to announce the notation votes, I would like to take a moment to welcome the newest member of the Commission, Commissioner Constance Smith Barker.

Commissioner Barker hails from Montgomery, Alabama, why did I think Birmingham?

COMMISSIONER BARKER: No, not Birmingham.

CHAIR EARP: Montgomery, Alabama, which we all know has great significance in the Civil Rights Movement. I am confident that Commissioner Barker's experience as a judge, as a prosecutor and as a corporate attorney will enhance the Commission.

She might also add a little bit of accent diversity. Being from Alabama, she will compliment Commissioner Griffin being from Boston. So we are very, very happy to have Commissioner Barker with us.

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 and welcome to EEOC Commissioner Barker. 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 of the meeting room, departing and reentering as quietly as possible.

Also, please take this opportunity to turn your cell phones off or to vibrate mode. I would also like to remind the audience that in addition to the elevators, in case of emergency, there are stairways down the hall to the right and left as you exit this room. Additionally, the restrooms are down the hall to the right.

During the period June 17, 2008 through July 18, 2008, the Commission acted on four items by notation vote.

Approved litigation on two cases; Approved the Final Rule revising 29 C.F.R. Part 1615; and,

Approved television cameras at the July 22nd Commission meeting.

Madam Chair, it is 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 EARP: Thank you Ms. Wilson. Do I hear a motion?


CHAIR EARP: Is there a second?


CHAIR EARP: Any discussion?

(No response.)

CHAIR EARP: Hearing none, all those in favor say Aye.

ALL: Aye

CHAIR EARP: The ayes have it, the motion is carried, thank you Ms. Wilson.

Good morning again. It is with great pleasure that I welcome you to this Commission meeting. One housekeeping note before we begin. I'd like to remind everyone that we have a very full agenda today and we're on a tight schedule. To afford each panelist their full allotted time to speak and to allow the Commissioners time to ask questions, I've asked our Legal Counsel to make use of the timing light.

The timing light will turn yellow giving each panelist and Commissioner a one minute warning. When the light turns red, it means stop, your time has expired.

You may finish a thought, but please respect the time limit so that those scheduled later in this meeting are not rushed. I promise we will stay here if it takes all day until the issues have been fully vetted.

Now, let's turn to the substance of today's meeting: Issues faced by Asian-Americans and Pacific Islanders in the federal workplace.

Shortly after I arrived at EEOC, Mr. Farook Sait, who is an attorney with USDA, was also at the time an officer with FAPAC, the Federal Asian.Pacific American Council. Through frank and open discussions with representatives of the Asian community, mostly facilitated through Mr. Sait, we decided to get together a small group of representatives from this segment of the federal employee community and talk openly and candidly about what federal agencies were doing right and what federal agencies desperately needed to improve.

I heard stories during this time that clearly illustrated some Asian.American employees were having major problems in the federal workforce. Some of these stories angered me, some of these stories inspired me, some of them made me convinced that we needed to get to exactly where we are today.

The concerns raised by Asian federal employees were not just about employment or the lack of upward mobility. Surprisingly, there were also problems with a lack of support at the agency level for special emphasis programs.

By the fall of 2007, based on conversations with the community, I formed an interagency workgroup to review problems in three categories. Specifically, the employment of AAPIs, special emphasis programs and complaints, or more specifically with complaints, why there are so few coming from this community. I extend a sincere thanks to the workgroup members and I'd like to just take a moment and acknowledge those who are here today.

Linda Bradford.Washington, the US Department of Housing and Urban Development; Sherrie Davis, National Institutes of Health; Anna Hui, Department of Labor; Robert Jew, the National Archives; Gazal Modhera on my staff; Piyachat Terrell, EPA; Farook Sait with USDA; James Su with FAPAC and Sharon Wong who's with the Asian.American Government Executives Network.

The AAPI Workgroup has been studying these three focus areas for almost a year. Today's meeting allows us to continue gathering information and begin sharing best practices. But we also need to ensure that there is equality of treatment, even as agencies improve programs, we need to ensure those AAPIs currently employed receive equal opportunity.

Panels 1 and 2 are an extension of the fact gathering process and we will start with Panel 1, the Status of Federal AAPI Employment, Changing Demographics, Labor Market Growth and Employment.

Our panelists are our very own Carlton Hadden, Director of the Office of Federal Operations, John Palguta, Vice President, Partnership for Public Service. And our experts are Dr. Paul Ong, who is a Professor at UCLA School of Public Affairs and the Department of Asian.American Studies and Dr. Sharon Goto, who is an Associate Professor of Psychology and Asian.American Studies, Pomona College.

Please, would you come forward and take your seats. Thank you. Carlton, we'll start with you.

MR. HADDEN: Good morning Chair Earp, Vice Chair Silverman, Commissioner Ishimaru, Commissioner Griffin and welcome Commissioner Barker.

Since my formal statement for today's meeting provides greater specificity, I wanted to just highlight a couple of points for you this morning. And first, I begin with the Commission's policy directive.

MD 715 is really critical to the discussion today. As you know, that directive requires agencies to implement model EEO programs and the central aspect of doing that is the identification and elimination of barriers to equality of opportunity in the federal workplace.

EEOC defines a barrier as an agency policy, principle or practice that limits or tends to limit employment opportunities for an EEO group.

In order to eliminate barriers, an agency must conduct a barrier analysis of its workforce. This means using a variety of sources to identify the barriers. It includes periodically taking, reviewing and refining snapshots of the workforce.

An agency must investigate and identify barriers and identify triggers or anomalies in the data that show low participation of a particular EEO group.

Once a barrier is identified, an agency must devise a plan to address the cause of the barrier. As well, the agency must determine whether a barrier is job related and consistent with business necessity. If they are not, the agency should plan to eliminate that barrier.

Now that we've had a few years with MD 715, we have found that it is in this area of barrier analysis that some agencies need to focus their effort.

The other point I want to make illu

strates the need for more rigorous barrier analysis with regard to AAPIs in the federal workforce.

Certainly at first glance, when you look at the overall federal workforce data for AAPIs, you see that the federal government arguably could be considered the employer of first choice.

The percentage of AAPIs for FY 2006 in the federal workforce was 6.06% and that's compared to a CLF of 3.8%. It's an improvement from 10 years ago when the percentage was just 4.71%.

Moreover, when you look at the pay grades above GS.15, you will see that in 1997 AAPIs held only 1.98% of federal jobs. And in comparison, in FY 2006 the percentage increased to 3.73%.

Even with this increase, the percentage of AAPIs in these senior grades is well below the overall rate of participation in the federal workforce. When you drill down below this government-wide percentage and look at how AAPIs are fairing in various federal agencies, the result is more mixed.

We see a wide range running from 16.45% at DOD's Commissary Agency to the TVA with .3%. Even when we look at an agency that has shown a large increase in its workforce percentage, there still may be gaps at the senior pay level.

Health and Human Services is one such agency. Over a five year period its AAPI workforce increased by over 2%. If you look at the HHS GS.14 level, there was a 9.12% participation rate. At the GS.15 level, there was a 6.06% participation rate. However, when you look at the senior executive service pay level, the AAPI level drops dramatically to 2.19%. This is a type of trigger for which a solid barrier analysis is needed.

We know from the work of the EEOC AAPI task force, agencies need to do more in this area. As part of its work, the EEOC AAPI task force surveyed 55 agencies. Of those surveyed, only 15 identified triggers in their workforce data regarding AAPIs. Even fewer identify any barriers, any actual barriers to employment.

The task force also examined AAPI participation in mid.level management and in senior level positions and found that while there's a large pool of Asians and native Hawaiians to choose from in many agencies, their participation rate begins to decline at higher levels.

So in conclusion, while there clearly has been progress government-wide in regards to the number and percentages of AAPIs, the focus really needs to be on individual agency results in regard to AAPIs in the workforce.

Moreover, agencies really need to refocus their effort and I'm sorry, refocus their use of barrier analysis as part of the MD-715 effort.

Again, thank you for the opportunity to share these thoughts with you and I'll be delighted to take any questions at the right time.

CHAIR EARP: Thanks. Mr. Palguta?

MR. PALGUTA: Good morning Chair Earp, Vice Chair, Commissioners, colleagues and friends. Delighted to be here today to join in this discussion.

The Partnership for Public Service, where I am now the Vice President for Policy - and prior to that I spent 34 years in government - the Partnership has two basic missions, one is to inspire quality talent to government and to transform the way government works so that we continue to make good use of that talent.

We know that good government starts with good people. We also know that achieving a truly diverse workforce is not only a good business practice, but for government, it is an imperative.

I would like to, during my five minutes, focus on three specific issues. One, the current status of Asian-American Pacific Islanders in the federal workforce. Some challenges and opportunities, number two, that will be occurring within the government over the next five years and beyond. And then three, some of the barriers that I believe still exist in the Executive Branch, which may hinder our ability to make as good of use of that talent, particularly AAPIs, as we should.

First, in terms of the current status, Mr. Hadden has already provided some statistics there. I would simply add that as Mr. Hadden noted, I think it's important to recognize and to celebrate the success that we have had in the representation of AAPIs in government.

In my written statement, I took a different slice of time, but it's the same basic result. Over the last seven years, drawing from data in the Federal Equal Opportunity Recruitment Report, submitted each year by OPM to Congress, we've seen increases in total representation, we've seen increases for AAPIs at all salary levels. However, that overall picture does mask some very real differences beneath the surface. For example, in 2000, AAPIs met or exceeded the representation in the relevant civilian labor force in 14 of 17 departments and agencies.

By 2007, that was true for only 7 of 18 executive departments. In 2000, AAPIs met or exceeded their representation in the relevant civilian labor force in 15 of 22 independent agencies. In 2007, that was only true for 11 of 24 independent agencies.

And of course, AAPIs, along with almost every other demographic group, continues to be under represented among the 7,000 members of the Senior Executive Service, in the Executive Branch.

So clearly, while much progress has been made, there remains much room for further improvement.

Looking ahead, my area number two, the federal workforce is graying. I'm an example of that. Within the next five years, there will be at least half a million full time permanent workers who will leave the federal government. These are not individuals who will become retirement eligible, these are individuals who will go out the door. Most of them through retirements, many others, however; through resignations or moving on to other opportunities. While this is certainly a challenge, this is also a great opportunity in terms of increasing the diversity of government particularly at the higher levels.

We conducted, at the Partnership for Public Service, a study of projected hiring needs. We have a report on our website where the jobs are. But in brief, about 80% of the projected new mission critical hires for government, and that's about 193,000 jobs that will be filled over the next two years. Eighty percent of those fall into five occupational areas.

Security protection, compliance and enforcement agencies were projecting 62,800 new hires. Public and medical health positions, 35,000 new hires and that's probably a low estimate.

Accounting, budget and business, 21,200 new hires needed. Program management analysis and administration, over 14,000 new hires needed.

Comparing these numbers to earlier projections, there were several trends. The projected increase in compliance and enforcement jobs, of course, not surprising, many of those jobs in the Department of Homeland Security and DOD. And the demand will simply increase.

And that red light went on very quickly. In my written testimony, there are five barriers that I think will be important to take a look at and I'd be happy to address some of those in our conversation after.

CHAIR EARP: Thank you.

COMMISSIONER ISHIMARU: Madam Chair, just as a point of reference, in the .. when it’s posted on the website, I assume that the full statements, the written statements will be posted as well. So people can reference it on the website.




DR. ONG: Okay. Good morning. I want to thank you for your invitation to be here. I'm honored to be here. I want to make three sort of points.

One is an overview of the Asian.American Pacific Islander workforce, two, some remarks about the managerial category, and three, what academic studies tell us.

In terms of the labor force, the Asian.American Pacific Islander workforce is an important and growing segment of the American economy. Between 1980 and 2005 the AAPI workforce grew about roughly 10 times as fast as the workforce as a whole.

Projections for the next 25 years indicate the AAPI workforce will grow roughly three times faster than the whole. In 2005, there is roughly 9.5 million AAPIs in the working age population of which 6.5 were actively in the labor market.

It is ethnically a very diverse population divided among dozens of groups, but major groups include the Chinese, Filipinos, Koreans, Japanese, Asian.Indians, Vietnamese, and a host of others.

It is a population that's also very diverse in terms of nativity, roughly two.thirds to three.quarter are immigrants, but among the immigrants the vast majority have been in this country for 10 years.

Given the immigrant characteristics in the workforce it's not surprising to see that over two.thirds of all AAPI workers are in households where English is not the spoken language.

It is also a very diverse population in terms of what it brings to the labor market in terms of human capital. It is over represented at the bottom end, those without a high school education, but also significantly over represented among those with advanced education.

It is also very geographically concentrated among the seven metropolitan areas with high numbers of Asians. That accounts for roughly 44% of AAPIs compared to only 18% of the total workforce.

One thing to note is that concentration in large metropolitan areas have consequences in terms of earnings and cost of living. And part of what we observe is sort of relatively high earnings among AAPIs attributed to the metropolitan distribution as well as the human capital.

AAPIs are distributed throughout the economies, but actually they are disproportionately in the private sector. There is a stereotype of AAPIs being self.employed. Certainly there are self. employed AAPIs, but it's actually at a lower rate than non.Hispanic Whites.

In terms of occupational distribution, partly because of the education, AAPIs are over represented in the scientific and technical professions, but they are also over represented in service among service workers, restaurant workers and so forth. And this is particularly true among Pacific Islanders.

There's also under representation in the managerial categories. If we look at the managerial categories compared to non.Hispanic Whites, Asians are less likely be chief executives or very high managers.

They are under represented among the highest paid managers and where they are over represented, not surprisingly, are managers who oversee information technology and computing operations.

Interestingly, if we compare managers in terms of their disproportionate under-representation, if we look at the federal government versus the state and local government versus the private sector, large firm private sector; that the gap between their representation of the total workforce versus the representation of managerial categories, the biggest gap exists within the federal government.

So, one of the difficulties is trying to understand what all this means, because this is a very complex community, complex workforce in terms of the background. So some of the existing academic studies attempt to unravel the causes of where Asian.American Pacific Islanders stands points to a few things, certainly individual characteristics account for where we stand as well as contextual factors.

Individual characteristics we mean human capital, we mean race and gender, we also mean other factors as related to nativity such as years in the U.S., language and so forth.

Contextual one, again going back to the metropolitan area that one's in as well as maybe some of the industrial sectors that one's in. After accounting for that, I want to just sort of briefly summarize what the literature tells us.

One is that we do observe unexplained gaps between Asian.American Pacific Islanders and non.Hispanic White. That is, it can't be explained by those factors we normally attribute to the performance in the labor market.

But there is a great deal of variation in terms of those labor market outcomes and those gaps. Among males, there are unexplained gaps. It can't be explained by age, experience, education, nativity and those things that go with nativity.

For AAPI females, there is also a gap that can't be explained away. The red light's on. I would just like to say that some of the gaps can be explained by cultural factors, and we don't quite understand what that means in the labor market.

Some of it seems to be just pure discrimination and there's some issues as related to discrimination both as perceived within the Asian.American community and outside the Asian. American community. Thank you.

CHAIR EARP: Thank you. Dr. Goto?

DR. GOTO: Chair Earp, Vice Chair, Commissioners, colleagues and friends, I thank you for the opportunity to present .. to participate in this event today.

I have spent the last 15 years researching and working with business and community groups on issues and challenges faced by Asian.Americans in the workplace. And I believe that two of the most important of these are perceived discrimination and the glass ceiling.

So today I'm going to focus primarily on perceived discrimination, which might speak to some of the unexplained issues that Dr. Ong was speaking to.

Much of the research uses epidemiological or aggregate data so that individualized perceptions of discrimination can be studied systematically.

From the Filipino American Community Epidemiological Study, where over 2,000 persons of Filipino heritage living in Honolulu or San Francisco were surveyed, concern for workplace discrimination reported was 3.1 on a 4.0 scale.

Another epidemiological study looked at 788 working Chinese Americans in Los Angeles and they found that 21.7% reported having experienced unfair treatment due to either racial or language discrimination or both.

Regarding the federal sector, Asians are as likely as African Americans to feel that they have experienced discrimination. The heterogeneity of Asian.Americans has been widely documented, of particular importance here, Asian.Americans vary widely with respect to immigration, acculturation and education.

Based upon the diversity of Asian America, it seems likely that more than one process or mechanism feeds the glass ceiling and other issues. Indeed, barriers to equal employment experienced by recent immigrants are likely to be very different than those experienced by fifth generation Asian Americans.

Perceptions of Asian.Americans in the workplace range from ”go home,” “forever foreigner,” to ”Asian-Americans are becoming White.” Sources of discrimination or unfair treatment based on perceived category membership are presented in the following:

The first is language or accent discrimination. Over 13% of working Chinese Americans report experiencing unfair treatment due to language or accent. According to Ancheta, between dominant and subordinate English speakers, this is a quote, "The foreign accent or the low status accent can be a source of subordination."

Language and accent discrimination has a negative effect for Asian.Americans, where some groups might experience actually a perceived competent boost from their accent, this is clearly not the case for Asian.Americans. Communication skills and perceived competence in general are negatively affected by language and accent discrimination.

A second source of discrimination are perceptions of Asian.Americans as a model minority. This stereotype has persisted since the 1960's and again, it does persist today. This myth applies to only a subset of Asian-Americans.

For those Asian.Americans that are not mythically successful and thus have not broken the glass ceiling, this stereotype prevents the needed assistance that they need. Therefore, Asian.American networking associations may not be fully supported, skill deficits may not be proactively met, mentoring relationships may not be developed and systematic discrimination may not be understood as .. may only be understood as an African American and other problem and not an Asian.American problem.

Interestingly, the stereotypes of Asian.Americans as hardworking have changed somewhat since the 1960s. According to the empirically verified stereotype content model, Asian.Americans are perceived to be competent and excessively so.

This can lead to perpetration of the model minority myth, resentment and differential work assignments. One respondent that I interviewed recalled, "It's job related. They ask Chinese to do lots of things as if we were machines."

Additional assignments are not in themselves problematic as long as the appropriate recognition or compensation occurs and this may not be the case.

Laboratory research has shown that in highly educated sophisticated Yale undergraduates, using explicit self report measures, Asian.Americans were perceived as being American, but, under implicit subconscious measures, Asian.Americans were perceived as being foreign.

These perceptions of Asian.Americans as foreign can negatively impact assessments of communication ability, competence and importantly trustworthiness. And there are also perceptions of social deficiency.

Asian-Americans experience mixed envious racial prejudice. The model indicates that individuals from out groups fall into one of two clusters of perception.

There are paternalized groups that are liked as warm, but disrespected as incompetent and there are envied groups who are respected as competent, but disliked as lacking warmth.

The studies indicate that Asian.Americans fall into the latter cluster. In a laboratory study, perceived low social ability drove the rejection of Asian.Americans. Thus, perceptions of low social ability can lead to exclusion from social networks and exclusion from positions requiring social prowess. Perceptions of leadership will also be addressed.

Despite general perceptions of Asian.Americans as competent and hard workers, they have been largely kept out of leadership position in organizations as we have heard some panelists speak about.

Looking for individuals to occupy leadership positions is a vague and sometimes byzantine process, but importantly also one where the risks are great.

Under these situations of great risk and of subjectivity, it is likely that many of the sources of discrimination previously discussed come into play. Asian.Americans may be perceived as unassertive, team players more than leaders and lacking self promotion.

A successful, smart and affable retired vice president from a multi.national computer firm that I interviewed said, that he progressed through the ranks quite comfortably, but when it came to further promotion to the most exclusive levels, he was told that he did not have presence.

What is presence? That question has haunted me. Like leadership, it is prone to perceptions like many of the sources of discrimination previously discussed.

If there is not a willingness to perceive presence in a person, it will not be found regardless of competence and merit. Okay, so the red light is on.

Discrimination affects hiring and promotion decisions and may be responsible for the higher rates of quitting found among Asian.Americans as Asian.Americans try to advance their career elsewhere. At the individual level, there are certainly mental health and regular physical health costs.

In conclusion, discrimination against Asian.Americans in the workplace can be particularly insidious and invidious due to the model minority stereotype.

And it's really important that we pro.actively meet this challenge, especially since Asian.Americans may be more reluctant than others to come forth with incidents of discrimination due to loss of face, lack of awareness and stigma. Thank you.

CHAIR EARP: Thank you. Panel 1, you've been wonderful. I want you to stay put for a few minutes. The information you presented actually sets the stage for the next two panels.

Also, I want to acknowledge Susan Aramaki, who came in a few minutes ago, the Director of Civil Rights at Commerce.

At this point, there's so much information, I want to make sure I give my fellow Commissioners an opportunity to make opening statements, respond to what they've heard and if they have time, still adhering to the five minute warning, to begin the process of asking questions.

COMMISSIONER ISHIMARU: So we're only going to have five minutes total for all of that and not opening statements and then a round of questions? I just want to be clear, so I ..

CHAIR EARP: Well, for the first opening statements, we want to try to stick to the five minutes if we can, and if we have time, answer questions, but we'll have as many rounds as we need to fully vet the issues.

COMMISSIONER ISHIMARU: Of questions, okay. All right. Fair enough. Thank you very much.

CHAIR EARP: Yes. In order of seniority, I'll start with my Vice Chair.

VICE CHAIR SILVERMAN: Thank you Madam Chair, thank you panelists. I too wanted to start off by welcoming and wishing our newest Commissioner, Constance Barker, an official and warm welcome to the Commission. Title VII was created… you know, created a five member Commission that would constantly change, allowing for new blood every year with the departure of one Commissioner and the arrival of another. And I think this is a really good thing.

Each of us brings a different work and life perspective to the Commission, which is a policy making body. And I realize looking back, it's been two and a half years since we welcomed our new Commissioner, Chris is sick of going last and it's been nearly two years since we were a full Commission.

And at this point, in terms of Commission life, I think we're almost like an old married couple when one of us opens our mouth, the other ones know exactly what's going to come out.

So I can't tell you how happy we are to have you with us here today Connie. You bring a wealth of experience to the job, I think all of the Commissioners and I can speak for all of us, we're all just so pleased that you're with us today. So welcome.

And as I said, I also wanted to welcome the speakers here today, you're only here with us today, not, you know, for the duration, but we're so pleased to have you.

And I want to thank the Chair and her staff, especially in particular, Gazal Modhera for establishing and leading the Inter agency Asian.American and Pacific Islander Working Group, which has been examining the employment experience of the AAPIs in the federal government over the past several months.

I'm really pleased that through the workgroup and through today's Commission meeting, we're calling attention to some of the obstacles faced by Asian.Americans and Pacific Islander employees in federal agencies, a group that is so often overlooked when we focus on diversity and other anti.discrimination efforts.

You know, although the media tends to focus on the educational achievements of many AAPIs, as we've already heard, the segment of the population quietly continues to face prejudice and stereotypes that create barriers in hiring and promotion into the highest levels of organizations and in certain industries and occupations.

It's really my hope that today's meeting will shine a light on these issues. As members of the EEOC, it is our job to help dispel existing stereotypes and to heighten awareness about the discrimination suffered by employees.

And I'm pleased today that we are addressing a community that is often forgotten when we talk about Civil Rights. I'm also looking forward to learning more about some of the best practices utilized by federal agencies that have been particularly proactive and successful in this area.

And I'm really so thankful to all the speakers that have joined us today. I've read your testimony this morning, I thought it was thorough and really well thought out, and you obviously spent a lot of time and put a lot of effort into it and we really appreciate your joining us here today.

So with that, I know I'm going to ask questions when we actually have our first round.

CHAIR EARP: Okay. Commissioner Ishimaru?

COMMISSIONER ISHIMARU: Thank you Madam Chair. I too want to welcome the panel, especially welcoming Professor Ong, Professor Goto, who came from California, both bring a tremendous amount of expertise to the table and welcome again and thank you for coming to Washington.

I want to thank you Madam Chair for establishing the AAPI Workgroup. It's really the first time we've done something like this at the EEOC. I think it's well overdue.

I know when my predecessor, Paul Igasaki first came to the Commission back in the `90s, he really started the first efforts here for the Commission to deal with issues involving Asian and Pacific Americans and they made good progress during that time, but it was really the start. And I think this workgroup has been helpful in looking at these issues, looking at it from the federal sector side. I know four years ago I helped organize and then moderated a meeting, a quasi.meeting the Commission did on the Realities and Opportunities for Asian Pacific Americans in the 21st Century Workplace. One of the initiatives that was led by our former Chair, Cari Dominguez. And that discussion dealt with the whole broad range of issues involving Asian.Americans, not just in the federal sector, but in the private sector as well. And from the data we've seen this morning, Asian.Americans are generally in the private sector and yet the issues are so similar that both are worthy of taking a look at.

I'm glad that your workgroup is looking at the issues faced by Pacific Islanders because that too is a separate discreet group. And we've talked about that here in the past and I'm glad we're taking a look at that.

I hope during the course of the questioning in the next round that we'll have a chance to delve into the more complex and emerging issues such as structural bias and the more subtle types of discrimination that's faced by Asian Pacific Americans, such as things faced by scientists who worked in the national labs during the 1990's when they were pulled into the accusations against Dr. Wen Ho Lee who was accused of spying. There was a whole set of issues that were raised during that time period that it would be helpful to have aired in talking about the types of bias that arose at the time.

The other thing, we talk about the diversity of the community. And the one thing that we lose I think when we talk in the rubric of Asian Pacific American community is how truly diverse it is. And Dr. Ong touched on that during his oral remarks, but in the diversity of both where people come from and the diversity of when they came and Dr. Goto talked about how different the experience is for someone like me who's a third generation American versus someone who's an immigrant who just got here.

And, you know, those sorts of experiences get lost, I think, in the aggregate data that Director Hadden talked about. When we collect data for the EEOC, quite often, it doesn't get to the heart of the problem because it talks about the overall rates.

And the overall rates may in fact, hide the actual problem. And I think one thing that's been very helpful with the workgroup is that they've been trying to get below the aggregate and trying to look at those various layers that are there.

And I think that's helpful. Quite often, when you look at these subgroups, the smaller subgroups aren't talked about. If you talk about Cambodians, Laotian, Hmong; they have far lower percentage of college graduation, they have lower average income. These figures that they represent are similar to other minority groups and have similar problems to other groups as well. And I think by breaking it apart, you're able to get to some of these other issues and frankly, to the discrimination that many people in the community face that's unacknowledged for a variety of reasons.

And I hope, when we start in our questioning, that we'll have a chance to talk about the bimodal nature of the federal workforce. How, so much of our energies are looking at the top layer, which we should be looking at. We should be looking at why Asian Pacific Americans aren't able to break into the management levels, aren't seen as leaders. Why does this keep happening time after time and how do we break the cycle? How do we make forward progress to change this?

I hope we have a chance to talk about this during the further discussion. I thank you Madam Chair, the red light is on.

CHAIR EARP: Thank you. Commissioner Griffin?

COMMISSIONER GRIFFIN: Well I will be the last to actually welcome Commissioner Barker. Notice Barker, Barker, and I've added an "ah" to her first name, she's now Connie to me.


COMMISSIONER GRIFFIN: So you will get a good sense of these diverse accents up here. I definitely want to welcome you, it's great to have you here and I look forward to all the good work that we'll do together in the future.

I want to thank Chair Earp for actually having this meeting and forming the workgroup. This is an issue that I became interested in when I worked here in 1995 and `96 for Paul Igasaki when he was the Vice Chair.

I was one of his special assistants and as he traveled across the country, he frequently told us about different experiences that people would tell him about with regard to the discrimination they faced within the federal government. And we talked about it a lot.

And I know that, you know, some of the obstacles identified by individuals with whom Vice Chair Igasaki would speak with, were really the cultural bias of selecting officials and all the stereotypical misconceptions, the fears, myths and stereotypes about the leadership skills of Asian.Americans.

In addition, it appeared that the selection process in a number of the instances were either intentionally or unintentionally - the process screened out Asian.Americans and really screened them out of consideration for a variety of jobs as well as promotions.

So the statements make it clear that many of these problems still exist. And while we've seen some progress and some numbers, we're still seeing the same types of barriers and I don't think we're really doing anything until now to really start thinking about that and thinking about ways that we can address it.

So this is really a great beginning. And it is just a beginning. This meeting is just a beginning. And I really look forward to seeing us .. seeing the recommendations of the workgroup and working with all of you to actually start addressing some of the barriers you've identified. So I'm looking forward to the future.

CHAIR EARP: Thank you. Commissioner Barker?

COMMISSIONER BARKER: Well I want to first of all thank my fellow Commissioners for their very warm welcomes. I am thrilled to be here today and I really appreciate the very warm welcome that I have received from all four of my Commissioners.

They've been extremely helpful to me, especially knowing that I was sworn in last Monday and today they're throwing me into this meeting. But I spent some time reading your testimonies and was really intrigued by the information you had in here. And I appreciate the time that each of you spent preparing these because I know it is considerable. And I also appreciate those of you who, like Dr. Ong and like Dr. Goto have come from so far. California is way far away from me.

And I want to say too that this is a particularly intriguing issue to me because coming from my perspective I have just switched gears from being corporate counsel for several Korean.owned and operated companies in Montgomery. We have the Hyundai factory there and that has brought with it a number of supplier companies.

So this is enlightening and frankly very disappointing to me coming from my perspective representing Koreans, Asian.Americans who are highly respected in my community and are leaders in my community to find out that in the federal government that they are not allowed to rise at the ranks to which they should be allowed to rise.

So I'm very intrigued, I'm very concerned about these issues and I appreciate your contributions today. Thank you.

CHAIR EARP: Thank you. So we begin with a few questions for this panel.

VICE CHAIR SILVERMAN: Mr. Palguta, is that ..


VICE CHAIR SILVERMAN: Okay, I didn't want to butcher your name. You said that several large federal departments, such as the Navy and the Department of Commerce, DHS, you mentioned specifically, had been really successful in attracting and hiring and developing and retaining AAPIs, what do you think that these agencies are doing right in terms of specific practices and policies?

And in your opinion, what's preventing other agencies from following that path?

MR. PALGUTA: Well, those agencies in particular, and particularly DHS, have been aggressively hiring and they've been hiring, my observation, in a very open manner. They've been recruiting from all segments and they're looking for great talent and I think they're going beyond the traditional sources. They're looking high and low for the best folks for the jobs.

I think in some cases, also, we're finding agencies that are looking and this goes to the bimodal nature of the workforce; we're finding that it's not going to be sufficient to try to fill jobs at the entry level solely.

There will always be a good intake from our colleges, universities; we're going to have to hire experienced folks as well. I think those agencies that are recognizing and are starting to bring folks in, in jobs and a third of our senior executives will be leaving in the next few years, so there's a great opportunity there.

I think looking for great folks, being open, looking not only at entry level but mid.level, I think really has provided the agencies that have had success in filling their positions and also increasing the diversity of their workplace. Those that have followed the traditional route have ended up with the traditional results.

VICE CHAIR SILVERMAN: You know it was interesting when I was reading your testimony and you were talking about the traditional way that we, as agencies, go about getting external candidates in USA Jobs and all of that, but then you also talked in the next testimony that we have the tools, that we are able to go beyond that.

And I was also thinking about how you talked, I believe you talked at the beginning of the testimony, about older workers who are retiring, you know, and still looking for other careers. I recently heard a speaker talk about, the Baby.Boomers and how they're a lot like Generation Y and they want to have second and third careers. And I think there's a golden opportunity there to get, new folks into the government with different experience.

MR. PALGUTA: Absolutely. And I think this can also accelerate our ability to increase diversity at higher grade levels. We don't have to wait for someone to move up the ladder over a 15, 20 year first start of their career, we can bring them in right off the bat with experience.

VICE CHAIR SILVERMAN: And diversity of experience like we were talking about at the Commission.

MR. PALGUTA: Absolutely. Absolutely. A great opportunity.

VICE CHAIR SILVERMAN: Ms. Goto, your findings about how often Asian.Americans feel discriminated against are certainly consistent with what we heard about with the Gallup poll that we were involved with several years ago.

And you said that Asian.Americans may be more hesitant to report discrimination due to concerns about losing face or being stigmatized, et cetera.

Do you have any, you know, practical suggestions for how agencies, EEO directors or specifically, this agency can reach out and ensure that acts of discrimination against AAPIs are reported, that people are willing to report given this dynamic?

DR. GOTO: Well, I'll take some of the thoughts from the mental health literature, which suggests that Asian.Americans aren't likely to report mental health problems either.

So what they find there is that oftentimes if it is another Asian.American that is asking them, they will feel more likely to disclose to a perceived member.

I think if you define discrimination in a very explicit way and don't leave the ambiguities to the interpreter .. for them to interpret, what is discrimination, what is not and they will .. my guess is more readily respond to affirmatively that they have been discriminated against. That, that is indeed the case.

So it's about who asks, and it is about the way that you ask. I think those two things would be very important.

VICE CHAIR SILVERMAN: But in the polls, they say that they feel discriminated against, but they're not always willing to say, okay this is . . maybe they feel put down. It's unlawful discrimination, is that what you're saying? They don't know if it really reaches the legal standard or the threshold for complaining about it?

DR. GOTO: Yes.

VICE CHAIR SILVERMAN: Is it not reaching the threshold or an unwillingness to sort of take the next step or a little combination of both?

DR. GOTO: Yes, I think it's both.


DR. GOTO: I think it's exactly both, right.

VICE CHAIR SILVERMAN: All right. I see my time's up.

COMMISSIONER ISHIMARU: Let me follow up on the Vice Chair's line of questioning because one of the points I think you were making is that it depends on who's asking the question.

And if you look at how we're set up and how federal EEO offices are set up, there quite often are not Asian.Americans there in those offices. We have struggled here at EEOC over the years to try to get in bi.lingual staff members who speak Asian languages. And we have the literal handful in offices around the country. It's been a huge challenge for us to actually get people in place, for a variety of reasons.

But one of your suggestions is, if there are more, people are more likely to be willing to talk to that person, to talk to someone who looks like them. How important is that though? Is it a generational issue? Would the literature find that the longer people are in country, a further generation along, would they be more comfortable in complaining?

DR. GOTO: I think that's a good question. I think it is, yes, I think it probably varies, if it's a recent immigrant and then you do have language barriers.

And however, I think even for people who are fourth, third, fourth, fifth generation Asian.Americans, I think they would feel perhaps, especially when these things are very risky.


DR. GOTO: I think they'd be more likely to disclose to a person who either looks like them or, they don't necessarily have to look exactly like them, they just need to know that the process will be a safe one.

And maybe if they can .. so I think the whole idea of not wanting to stick out, an

d if you do stick out, that it be a very safe process is really very important for Asian.Americans.

COMMISSIONER ISHIMARU: Professor Ong, could you give us more of a feel for the diversity of the community? Much of your testimony talks about the various subgroups and how diverse it is and yet, we also talk in aggregate and it gets lumped back together.

Could you spend a few minutes talking about the various subgroups that are there and the challenges that, especially subgroups that we don't normally hear about, the challenges that they face?

DR. ONG: First, diversity I think we should recognize is the gap between Asian.Americans and Pacific Islanders. They're a very different population in part because the Asian.American population is an immigrant community.

The majority of the adult population is comprised of immigrants and continues to be so. Pacific Islander is an indigenous population, we need to recognize that.

I think there is between the two groups, there are huge differences. In many ways Pacific Islanders are similar to American Indians in terms of treatment, in terms of lack of access to resources, in terms of educational attainments and some of the barriers they face being essentially made strangers in their own land.

And we need to keep that .. and even among Pacific Islanders, we have also a difference between those who are from the Pacific Islands who come, not as American citizens, but as immigrants versus the populations that have some stake because either they live in Hawaii or some territory.

And again, there are very large differences in those communities. And then when we look at the Asian.American population, I think we ought to divide it along nationality lines and generational lines.

Nationality lines is clearly a byproduct of our immigration policy, including our refugee policy. On the one hand, we have a policy that created a very highly educated, very skilled labor force.

It's part of our efforts in terms of bringing in those of high educations through the occupational categories, but later on through chain migration of their families.

So it's not surprising because it is creaming that we have a disproportionate number of people in the health fields, in the scientific fields in engineering and so forth.

It is a product of our policies, our immigration policy. At the same time, we have very large numbers of people who come in as refugees. Some of the initial refugees are very well.educated, but later on otherways are essentially are people who are not very well. educated, have very few skills that are marketable in the U.S. economy.

It's also a population, particularly Southeast Asian refugees, that have difficulties being incorporated into the economies. Disproportionately relying on income transfer program, welfare programs, there's a huge issue about how they make the transition under welfare reform. In California, for example, Southeast Asians on welfare are enormously disproportionately represented among those who are timed out.

And the red light's on. Could I just say something about prejudice, stereotypes and so forth?


DR. ONG: One thing is that some of the research tends, even among Asian.Americans who feel discriminated against, there's a question about how they interpret, you know, who's to be blamed. And there is a certain sense of, you have to do it yourself.

And so I think that sort of inhibits blaming sort of larger things and then complaining. I think there's also a question about .. there's a form of question, I think there are types of discrimination that's hard to perceive.

So it's just not a question of whether one perceives or not, how to get at some of the sort of structural problems and patterns that individuals can't interpret. I mean, it's hard to interpret hiring practices and decisions because you're not privy to many things.

And the third one, is I think is additional barriers that although a high percentage of Asian.Americans describe themself as being discriminated against, if you ask non.Asian.Americans the vast majority, huge majority say that Asian.Americans are privileged and not discriminated against.

That creates several problems. I think partly, there is this perception that people will not accept Asian.American complaints. There's also a policy issue if we do not recognize that, that as a policy we don't move forward. Thank you.

CHAIR EARP: Thank you. Commissioner Griffin?

COMMISSIONER GRIFFIN: I too want to thank you for the time and effort that you've taken, you know, to come here today and testify.

Carlton, I would like to ask you .. I had prepared questions and now other questions always generate other questions.

Do we know how many Asian.American federal employees actually work in some of our EEO offices for our federal agencies?

MR. HADDEN: No, that's not data that we currently collect.

COMMISSIONER GRIFFIN: Does anybody collect that? Is there .. no?

MR. HADDEN: We could probably do, while looking at some of the data that OPM has to see if the job categories, and look at it that way, do it sliced that way.

COMMISSIONER GRIFFIN: Because I'm just thinking, you know, if you're a federal employee and you're going to file a complaint or at least seek counseling about whether you've experienced discrimination or not and you don't see anyone like you, you might not be doing it.

Do we collect any data about how many Asian.American federal employees are leaving the federal government every year?

MR. HADDEN: Yes, that's removable termination data.

COMMISSIONER GRIFFIN: We do have that, okay. Did you .. you didn't address, but are we seeing anything there?

COMMISSIONER ISHIMARU: Removal and termination, only would it be voluntary leavings as well?

MR. HADDEN: Separations from the government, separations from the government and you'd look further to see the reasons for the separation from the government.

COMMISSIONER GRIFFIN: So we could look at that and see if that .. I'm assuming if there was .. if we were seeing some big trend, you may have brought it here or should I not assume that?

MR. HADDEN: Well I think that's certainly one thing the task force ..

COMMISSIONER GRIFFIN: Will be looking at?

MR. HADDEN: .. will look at.


MR. HADDEN: And if they don't, certainly we're going to look at it.

COMMISSIONER GRIFFIN: Yes, great. Okay. And are we doing anything to address the, I guess the absence of Asian.American and Pacific Islanders in the higher ranks, especially the SES ranks? Are we doing anything or is that something also the workgroup will ..

MR. HADDEN: Yes. I mean that's an issue, without, you know, going into the lengthy resuscitation of, you know, past efforts. I mean from the highest levels of, you know, each administration comes in and has a government.wide task force that looks at that issue. And I think this is as far as I know, the first effort the Commission has done to focus on the federal sector.


MR. HADDEN: …and from this, I presume, as a result of the report of the workgroup, will identify solutions to build on that, how to fix some of these issues.

COMMISSIONER GRIFFIN: All right. Great. I really look forward to us doing that because it affects, you know, what we do affects other groups as well. And we learn every time we do something like this, we learn lessons that really help everyone.

Mr. Palguta, did I say that right?

MR. PALGUTA: You did.

COMMISSIONER GRIFFIN: We're all going to ask that I'm sure. I actually am very interested in your organization and I read the Daily Pipeline.

MR. PALGUTA: Thank you very much.

COMMISSIONER GRIFFIN: I get that on my Blackberry and for those of you that don't know, the Pipeline is the newsletter that the Partnership puts out via e.mail, sign up for it and you too can get it. And they actually take very interesting federal.employee.related stories from various places and put them in their Pipeline.

I'm very interested in the barriers that you identified. Now, I also think that they go across a number of different groups, particularly I agree with number four, which actually says, the federal hiring process is broken.


COMMISSIONER GRIFFIN: I think we all sort of agree with that, and you can just go on USA Jobs and find that out very quickly. It's very difficult to apply for a federal job, no matter who you are.

But number seven barrier you actually talk about direct hiring authorities and that we're not, as a federal government, managers are not using them. Are they not .. I think you're saying Congress should give them the green light to use them or give them more or whatever.

And that's one I don't actually agree with because I think we have some that we don't use and I think that's a problem.

MR. PALGUTA: Well, in the direct hire area, one, there are some direct hire authorities, and for those who are not familiar with the term, basically as I describe it as an old HR person is a hunting license. You've demonstrated that you've been unable to find the right talent for your job and rather than going through a month.long competitive process when you find someone who is really good, you can make an immediate offer.

So, it's something that's restricted to a shortage category situation, typically mission critical jobs and the Office of Personnel Management will grant agencies some direct hire authorities. From the viewpoint of the agencies they basically believe that they have to show that, you know, they're broken before they can use something. And they would like to have greater authority to make the determination with OPM oversight that they have a critical need and they want to go out and find great talent. And also, direct hire authority would let them better target their recruiting.

COMMISSIONER GRIFFIN: Well, I think, I mean the authority exists and people don't use it because it takes effort and no one seems to want to do that. And in addition to that, I worry about granting more liberty to do it if people are so inclined because I think we could use it as a way to get around diversity issues. And I would worry about that. I do think it would need very good oversight.

MR. PALGUTA: Absolutely.

COMMISSIONER GRIFFIN: Sometimes the term best and brightest means ..

MR. PALGUTA: Different things to different people.

COMMISSIONER GRIFFIN: You look like me, you know, who's ever doing the hiring.

MR. PALGUTA: Absolutely. Part of the accountability and oversight would be looking at the results achieved as well. And if you're not achieving diversity, that would be certainly an issue.

COMMISSIONER GRIFFIN: All right, well my time’s up, but I actually have more questions.

CHAIR EARP: Commissioner Barker?

COMMISSIONER BARKER: Dr. Ong, there was a statement in your testimony that I'm intrigued by and would like to hear a little bit more from you on it.

When you were talking about the problem with AAPIs not rising to the highest levels of management, you said that there was a disparity in the findings as far as males versus females. Can you talk to me a little bit about that?

DR. ONG: Yes, actually there's a very distinctive gender differences and let me sort of .. more broadly, if we look at earnings analysis, what we see is that Asian.American males are disadvantaged. That's after you account for education, other characteristics, that they earn less. These are the classical disparity studies.

What we find among Asian.American females is that they perform roughly as well as non.Hispanic white females, that is, we can't discern much of a difference in outcomes, whether we're talking about earning or entering in the certain occupational categories between Asian.American females and non-Hispanic white females. And I'm using non.Hispanic white females as a benchmark. So how do we interpret that?

The classical way of interpreting the male results is that the unexplained characteristics point to some barriers discrimination, otherwise that can't be explained away by those factors that we normally should take into consideration for hiring, promotion, so forth, something else is at work.

For females, the results indicate essentially one has to be very careful about interpreting. Essentially, it indicates that there doesn't seem to be a racial difference among females between Asian.American females and non.Hispanic white females.

But another way of saying that is that they face the same barriers, Asian.American females as non.Hispanic white females in terms of earnings, career advancements and moving into management.

And so, essentially that's .. there seems to be a fair amount of consistency in those sort of findings.

COMMISSIONER BARKER: So in other words, it's not necessarily good news that AAPI females are doing as well as white non.Hispanic females, it may just be that they are equally disadvantaged . .

DR. ONG: Disadvantaged. Yes, I mean that's one way of interpreting it. And so again, one needs to be careful in terms of empirical results. And I would interpret it the way you just interpreted it. I think that's a good way of interpreting it.


DR. ONG: Yes.

CHAIR EARP: Are there additional questions for this panel?

COMMISSIONER GRIFFIN: I actually have another question.

COMMISSIONER ISHIMARU: I have a few more too, but not many, Madam Chair, because I know there's a lot of people on the rest of the day.

Professor Goto, you had mentioned in your testimony of how the Asian Pacific American community is increasingly multi.ethnic and multi.racial. What sorts of implications does that raise? We struggled with that issue here of how should we have employers report data to us. And given the growing numbers within the AAPI community of multi.ethnic people, people being able to check one or more boxes on the census form or on the employment form, what sort of implications does that have for us?

DR. GOTO: It has actually very complex implications. For example, people that are multi.racial, they have different last names depending on who their mother versus father is and sometimes last name makes a difference in terms of who gets hired and who doesn't, and they still might be Asian.American.

And phenotypically, they may look very different. And phenotype actually matters too, whether you look more Euro.American, if you are half white and half Asian.American or whatever your combination may be.

And so just the experience of discrimination gets more complex when you talk about multi.racial individuals and also in terms of who they might seek for social support, social networking from. So that becomes more complex.

Also, the way that they might racially identify then also makes a big impact. So they may racially identify as Asian.American or whatever their other racial portion may be, so.

COMMISSIONER ISHIMARU: Would you recommend that we collect more data or less? Because one of the issues we faced is do we collapse this, when it's reported to us into a de facto multi.racial category, a two or more category or should we keep it separate so we're collecting what people actually report?

DR. GOTO: I think, the question is out, is unknown. But my inkling would be to collect more data. More data is always better than less data, especially because the experiences might be very different depending on the multi.racial categories. And that is huge.

COMMISSIONER ISHIMARU: Professor Ong, you study the huge pictures out there. And I was wondering from your perspective, do you have any policy recommendations for the Commission on how we should be looking at these issues?

DR. ONG: I have a couple of them. One is that, I want to go back to the statement, if we rely on people coming forth to complain about discrimination, I think we capture only part of the issues.

The ones I'm most concerned about are those more structural things, institutionalized practices, that are hard to discern. It's hard to discern whether or not, for example, your name really made a difference or not, your surname, whether your accent made a difference or not.

What I'm intrigued by are some of the audit studies that have been done. So one example of the audit study is sending in resumes that have the same qualifications, but different surnames. And we notice that there are differences in terms of requests that come in for in.person interviews.

HUD does these audit studies. And actually that's very insightful because actually I was very surprised, the last audit study was done about six, seven years ago, it was quite awhile ago.

But what I found surprising is that Asian.Americans face roughly the same level of housing discrimination that African Americans and Latinos face also. And I was actually shocked. I was expecting some discrimination, but not at the same level.

You can't get at those things just by having people come in and file complaints. You ought to get people to feel comfortable, come in to do that, but there are other practices in the labor market structural ones, institutional practices that people, individuals can't discern, or may be reluctant, or may be, you know, they're not sure. In the face of uncertainty, they may not come forth. I think so there are these issues that we ought to look at.

I just want to go back on the multi.racial category, we do know analysis of Pacific Islanders, particularly Native Hawaiians, that there are big differences between Native Hawaiians who are

predominately Native Hawaiians by ancestry versus those who are only part Native Hawaiian.

There are differences in terms of preliminary outcomes; there is differences in terms of wealth accumulation. Being Native Hawaiian in parts do disadvantage you, but there seems to be empirically looking at the data in terms of outcome, very large differences.

And so I would encourage, until proven otherwise, to gather that additional data because I do suspect that there are differences and we have already seen it in the studies that we've done on Native Hawaiians.

COMMISSIONER ISHIMARU: I know we have a lot of other speakers. I hope, Madam Chair, we'll have a chance to have this panel back someday because it's really sort of scratching the surface for me as to areas we might go.

And as you know, we've talked about a number of these issues, especially the auditing issue of how do you get to these issues on a proactive basis from the agency. And that's something I know we've talked about, I know we're interested in. The question is how do we put it into place.

But I thank the panel, it was very enlightening.

CHAIR EARP: Commissioner Griffin?

COMMISSIONER GRIFFIN: I have a question about applicant flow data, because it's something that we actually asked the agencies to report to us because, if you're not looking at who’s applying and you don't know who's, you know, you can't compare to who you're actually getting in the door. So this has become an issue for us and some agencies report it and some don't and OPM frankly is one of the agencies that chooses not to.

And I was wondering if anyone, John, anyone wants to talk about, you know, how important that is if we're really going to measure whether we're successful or not.

MR. PALGUTA: Well, Partnership for Public Service is a big believer in metrics and measures, what gets measured gets accomplished.

COMMISSIONER GRIFFIN: It's treasured, as my friend Stuart Ishimaru once told me.

MR. PALGUTA: And in fact, we even have a state of the public service initiative where we're trying to gather metrics to measure the overall health of the civil service.

In terms of applicant flow data, I think it can be extremely valuable. There are some issues, obviously, in terms of gathering it, it cannot be required, applicants can opt out. But I think if you're not looking at your applicant pool, you don't know when you should be expanding that search. So I think we should definitely be looking for opportunities to gather as much usable information as is feasible and reasonable. And I think, you know, once you have that data, of course, then you also take a look at your selection data to see if there's disparities.

COMMISSIONER GRIFFIN: Right, I know the Partnership has a great influence with OPM, you've done a lot of work with them over the past few years. Is that something that you would recommend to them to reconsider?

MR. PALGUTA: Well, I’d be happy to recommend to them. I'm not sure how much influence we actually have, although I will say the acting director, Howie Weizmann, did come from the Partnership to OPM.

And I know these are things that Howie, as he likes to be called, cares about. But yes, we certainly have had continuing conversations with OPM about the need for metrics and measures.

COMMISSIONER GRIFFIN: That would be great, because I really think, you know, whether it's, you know, Asian.American, Pacific Islanders, people with disabilities, whoever it is that we're trying to take a look at, if we don't have that data, we're really missing an important piece.

MR. PALGUTA: Yes, absolutely. I would also mention very quickly, we do "The Best Places to Work in Government" rankings and we include in there some demographic breakdowns in terms of employee perceptions about their agency. And I think we find that quite useful as well in terms of analyzing your own agency as a place to work.

COMMISSIONER GRIFFIN: Yes, great. Thank you. One other question, Dr. Goto, has anyone looked at .. are there any studies about the intersection of disability and being Asian.American or Pacific Islander?

DR. GOTO: I don't know of any.


DR. GOTO: Although, it should certainly be pursued. I think Asian.Americans in the workforce in general is under.studied, and certainly when you look at intersections of disability, yes.

COMMISSIONER GRIFFIN: That would be interesting.

DR. GOTO: Very Interesting.

COMMISSIONER GRIFFIN: Maybe I can put a plug in to you and Dr. Ong to either do it or convince somebody to do it because I think it would be an interesting issue. Thank you all very much.

CHAIR EARP: I have a final question and it's also an intersection question, and it goes to the intersection of color, because EEOC is not only concerned about nationality and race.

Given the diversity of the Asian community, Dr. Ong, Dr. Goto, do you find any distinctions either in pay or perceptions of discrimination that falls along color line that perhaps might distinguish the way Chinese.American, Japanese.Americans perceive their treatment versus Pakistani.American or Indian.Americans.

Any comments or data along those lines?

DR. GOTO: Well, what I will say is that I know the Filipino American Epidemiological Study presents a higher rate of perceived discrimination than the Chinese American discrimination. So I would say that there is some evidence of that.

CHAIR EARP: So you would attribute at least a part of that to color?

DR. GOTO: Not having the data, in asking that question specifically, I would guess that it could be due to that.

CHAIR EARP: Okay. Dr. Ong?

DR. ONG: There are clearly differences in terms of reaction to perceived discrimination. We don't know if the differences in self.reported discrimination across ethnic groups reflect a reality in terms of the rate of discrimination versus how it's interpreted.

But there's also differences in terms of how responsive and how vocal different groups are. And that's, I think, imbedded in the culture. There's a huge question out there as to what degree that we talk about culture, ethnicity, language becoming racialized.

There's a fine line, I think, in terms of what is considered cultural ethnic linguistic barriers and what becomes racial barriers.

To what degree do some of the practices that may create, hinder Asian.American, Pacific Islanders based on culture, race and language really is a sort of front for race. And also, to what degree among Asian.Americans themself, they begin perceiving themself in sort of racial categories.

We do know that in the general public, there is a racialization of Asian.American Pacific Islanders, that is the inability to distinguish across ethnic racial cultural religious lines by categorizing it.

So there is this sort of foggy process, there is no question that for an immigrant population, again, language, culture, nativity, religion counts for a lot in terms of what happens. But there's also a process that essentially racialize Asian.Americans and Pacific Islanders. And a lot of it is external to the population.

CHAIR EARP: Okay. Thank you. Thank you very much to the panel. While Panel 2 is preparing to come forward, I would like to take a five minute comfort break with the permission of my Commissioners?..


CHAIR EARP: Okay. Thank you. Five minutes.

(Whereupon, the foregoing matter went off the record.)

CHAIR EARP: Thank you. The meeting will continue with Panel 2. Panel 2 is what we generally at EEOC call, “putting a face to the case.” Essentially the stories you’re going to hear are compelling and personal. Our three panel members will address the realities and barriers faced by AAPIs in the federal government.

Dr. Jeang from the National Institutes of Health, John Lee, President, National Association of Asian American Law Enforcement Commanders and Dr. Basu, now.retired executive, USDA. Dr. Jeang, we'll start with you.

DR. JEANG: Thank you very much. Chair, Vice Chair, Commissioners, colleagues and friends, I'm extremely grateful for the opportunity to speak to the Commission today on the topic of the glass ceiling for Asian.Americans in federal leadership positions.

Before I offer my brief remarks, let me tell you a little bit about myself. I was born in Taiwan, but from ages five to 12 I grew up in North Africa in Libya. In fact, I was there in 1969 when Muammar Gaddafi took over in a bloodless coup.

And I was also there during the famous 1967 war. So as you can tell, I've been all over the place and seen a lot of different things.

I arrived in the U.S. at age 12 and attended public schools. At age 16 I was fortunate to be accepted to one of our great institutions in Boston, MIT.

Two years later at age 18, I left MIT to go to perhaps an even greater institution in Baltimore called the Johns Hopkins University School of Medicine where at age 25 I earned my M.D. and Ph.D. degrees.

Now, since 1985, which is one year after I graduated with my M.D. and Ph.D. degrees, I joined the National Institute of Health, first at the National Cancer Institute in Bethesda, Maryland as a scientist. So if you do the math, from `85 now to 2008, you will come up with a number 23. So I have been now at NIH for 23 years. Now in common vernacular, every 20 years represent a generation. So you can say that I’m here to bear witness to a generation of Asian.American hopes and progress at arguably our nation's premier biomedical research institution.

So having seen one generation of change, how would I characterize the state of Asian.American affairs at the NIH today? In 2005, I was asked the same question by Jeff Mervis from Science Magazine. My short answer to him then and my answer to you now is that we have come a long way, but we still have miles to go before we can rest.

Today, if you were to walk into a seminar room at the National Institute of Health, where the seminars would be presented on the latest findings, it would not surprise you to turn around and look in the room and see 40% or more of the faces in there are clearly recognizable as Asian. That scenario is not surprising because NIH statistics show that Asian Pacific Americans make up 15% of the total workforce and at the doctorate level, the APA compose of 62%, 1,120 out of 1,800 post doctoral visiting fellows, 37% of the research fellows, 25% of the entry level primary investigators, the tenure track investigators, and 11% of the tenured scientists.

And I think it would not surprise you that if you would open the leading journals and look at the productivity and the progress that is produced from the NIH, that Asian and Pacific Americans account for a very large percentage of that output.

So, what happens then when you walk into a room full of chiefs, as I was asked to do a few months ago? In that setting, you might encounter one Asian face.. on that occasion, mine.. in a room of two dozen or more individuals.

This is also not very unusual because the entire NIH today has only 11 Asian and Pacific American laboratory branch chiefs comprising less than 5% of the leadership positions at that rank. Note please that Asians make up roughly 12% of people qualified to be in that rank.

Now you will note that the National Institute of Health is made up of 27 different institutes and centers. So if you do the simple mathematics, there are only 11 chiefs that are Asian, there are 27 institutes and centers, you will come to the conclusion that the great majority of the centers don't actually have Asians at the chief level.

So, I would say to you that we have basically a bottom heavy, top light Asian.American representation at the NIH. So what is the problem and how do we go about asking the question?

I think the problem partly resides on the fact that we have to ask ourselves, do we see diversity in federal leadership as a plus or as a minus? I think also it is important to note that when we go about the selection process, there are concerns in the Asian.American and the minority community that the selection process is not sufficiently transparent.

We are all aware of past examples where laboratory chiefs were hired with no advertising for the positions, and it is my understanding that under current conventions, if a director chooses to promote internally, he can do so without going through open and fair competition.

So I think in the face of the numbers being what they are, if we continue to follow this type of procedure, it is very unlikely that this convention creates confidence in Asian.American groups or any other minority groups.

I think it is important that we take concrete steps to change the process, I think it's important that we ask the existing leadership to address and recognize the issue and that we institute steps for accountability to see those numbers can be changed in the coming years.

I thank you for your efforts and your attention.

CHAIR EARP: Thank you. Mr. Lee?

MR. LEE: Good morning, Chairman Earp, Vice Chair, Commissioners, colleagues and friends. My name is John Lee and I serve as the President of the National Association of Asian American Law Enforcement Commanders or NAALEC.

The Association was founded in 2002 as a way for law enforcement commanders to network and promote qualified Asians into the highest levels of government. On behalf of NAALEC I am honored to be speaking to you today and have the opportunity to address the lack of AAPIs in the workforce and the senior executive service.

I'm a third generation Chinese American born and raised in San Francisco, California. I've been in law enforcement for over 21 years, first working for the San Francisco Police Department, the Immigration and Naturalization Service and ATF, the Bureau of Alcohol, Tobacco, Firearms and Explosives for the past 16 years.

I progressed through a number of positions within ATF and have been in supervision for the last seven years. While blatant racism appears to be rare in today's work environment, subtle and hidden discrimination is still common practice in law enforcement.

Whether it is racism or ignorance, AAPIs face unique challenges compared to other minority groups. AAPIs are often passed over for promotion or high profile assignments and we are viewed as quiet, lacking in leadership qualities and assertiveness.

Because of our physical stature and youthfulness in appearance, we are viewed as needing more training or experience when other groups of similar or lesser backgrounds are considered prepared or more qualified.

Regrettably, representation in the senior executive service by AAPIs in law enforcement has not improved. While no agency in government exceeds the 5.89 for the entire Federal Executive Branch Fiscal Year 2006, the numbers for law enforcement for AAPIs in the SES are far smaller.

One of the problems in particular is the lack of readily available information for the law enforcement job series. The Department of Justice and the Department of Homeland Security are the two largest employers of special agents and other uniformed law enforcement officers.

In fact, DOJ is one of the worst departments in the federal government in the preparation and promotion of law enforcement SESs by AAPI descent.

The total number of SES employees in DOJ is four, one of which is female, that puts all of DOJs sworn and non.sworn at .7% through September, 2007.

Department of Homeland Security fairs no better than DOJ. In September, 2007, DHS reports .6% AAPI representation in the SES, 2.4 at the GS.15 level.

Again, these numbers are department.wide, do not reflect the extremely poor representation of AAPIs in law enforcement. We at NAALEC are in agreement with many of the recommendations put forth by the AAPI Diversity Study Group, one of which is including tying outstanding performance ratings and awards to effective diversity initiatives undertaken during a review period.

Directors and administrators of an agency must be held accountable for the actions or inactions of their agencies. The proposed Senior Executive Service Diversity Assurance Act in Congress would bring much needed Congressional and OPM oversight, but force leaders of government to finally take affirmative steps to assure AAPI diversity within the SES.

AAPIs are severely under represented as a group in law enforcement, and as such, need to be counted and categorized different from other diversity groups.

To elaborate, in EEOC reports, red flag triggers are identified in what EEOC considers to be severely under.represented groups based upon percentages in comparison to the civilian labor force or CLF.

In law enforcement positions, AAPIs often have zero or one SES incumbent, but as a group do not trigger red flags as the percentages are within a certain range compared to the CLF.

Our recommendation is that when an agency has zero or one AAPI SES or SES candidate, an automatic red flag should be triggered forcing an agency or department to implement strategies for improvement. Currently, certain DOJ components with zero representation in the SES ranks do not trigger a red flag.

In summary, law enforcement AAPIs face many hurdles in the quest for upward career mobility, racial stereotyping, physical requirements, perpetual foreigner syndrome and a lack of role models are many of the roadblocks promoting the success of AAPIs.

The serious lack of AAPI representation in the SES ranks will become more acute as the number of current AAPI SESs are slated for retirement within the next five years.

Federal law enforcement agencies need a committed strategic plan to recruit and retain AAPIs in the SES program to address this issue of diversity and to truly reflect the communities in which we serve.

I would again like to thank the opportunity to testify and present this point of view on behalf of AAPIs in the law enforcement community.

CHAIR EARP: Thank you Mr. Lee. Dr. Basu?

DR. BASU: Chair Earp, Vice Chair, Commissioners, colleagues and friends, it is a great honor and privilege for me to be here and appear as a witness and submit this testimony or the statement regarding lack of equal opportunity of Asians in the federal sector and towards that end I will share my experiences in the USDA where I work.

After finishing my college degrees and everything else, I worked for 10 years with two land grant universities.. Colorado State and West Virginia University.. and I've been part of the cooperative extension service.

And then in 1977 I joined the USDA as a Deputy Director of Civil Rights in the Science and Education Administration. And after that I just became the Director of Civil Rights in the National Resources Conservation Service of USDA and I served there for almost 17 years.

It was a great privilege for me to work in those capacities because I worked all 50 states doing extensive reviews and monitoring progress, et cetera, et cetera. That really opened my eyes to what are the problems of civil rights and how we need to address those.

I'm going to give a quick background, I mean, about my experience at the USDA. The experience at USDA is a very interesting to see that Asians are systematically shut down or they're cut out from the upper level management positions.

Whenever they apply, they make tremendous progress in terms of scoring high results through their experiences, training and background.

As a result, they also have to go through a process called the interview process. And they go through the interview process and the system is set up in such a nice way that always marks them down with a statement like ”did not respond clearly.”

And I find the agencies that make the decisions, essentially make the selection on the basis, on the grounds that they gave us that these selectees showed better leadership qualities. We don't know what they are.

But anyway, even for those non.managerial and non.supervisory positions, they thought leadership was an essential thing. I personally field quite a bit of complex problems in the USDA, the thing of it is, you know, I was probably .. bad luck started when I was competing and qualified for an SES training. And I went through a national selection process and I was selected to go through the process, completed the training and was certified by the U.S. Office of Personnel Management as qualified to enter the cadre of SES.

Once you are certified, I mean as an SES, you don't apply for positions. I was told that, you know, as positions opened up, you would be placed and given consideration, et cetera.

So six years passed and almost 37 positions were filled. Here is the only Asian being trained and qualified by the OPM.. did not get a chance to be posted to any of the vacancies. That's when I filed my complaints and eventually went and found that when these things were going so erratic, I appealed to the EEOC. In one instance the EEOC also ruled that the agency had indeed retaliated against me and I personally met the Director of Civil Rights of USDA and asked for intervention about this situation, and there wasn't any action on their part and then subsequently, the retaliation started, I could tell because of my complaints.

Number one, I was named as Acting Director of Civil Rights after being there for 17 years. And number two, I was made eventually a specialist outside the Civil Rights arena and was assigned to a position that where I had nothing to do except with a desk and a chair.

And finally, they found that allegations of misconduct was filed against me through the Office of General Counsel to the OIG and - Inspector General, I'm sorry. And the OIG found no evidence of any wrongdoing on my part and harassment continued. So when this was going on after facing all of these things, you know, and with the rising crescendo of the other Asian employers from the USDA agencies, who experienced similar problems that I had experienced, say in November 1999 I filed a class complaint, Arun C. Basu, et al v. Veneman.

When I filed the class complaint, the Director of Civil Rights refused to talk to the EEO counselor. And the department refused to consider engaging in any sort of mediation. But interestingly in 2004 when this was .. the case was still in the EEOC for certification purposes.. I was asked to go to a mediation process with two attorneys from the Office of General Counsel within the USDA asking me to compromise and settle my complaints and go away.

We'll give you a substantial amount of money and hopefully you'll decide that you'll retire, which I declined.

Out of the many of the class complaints, only the Basu complaint was settled and the Assistant Secretary of Civil Rights, Mr. Vernon Parker was advised by the General Counsel that this is a case you are to settle because it has been determined to be a vulnerable situation.

With that, after seven years, the case was settled, which resulted in my promotion to the SES rank. I have a couple of things to say about the USDA. The biggest failure on the part of the Civil Rights of the USDA, it does not conduct compliance reviews of these agencies even when there are evidences of problems.

Given the situation with all these years of experience in Civil Rights, I found three things that worked. Number one is educate, monitor and enforce. This is seriously lacking in the entire Department of Agriculture. And I think it will . basically this has to be addressed and it has to be from the MD 715 reports. I don't want to get into this, but I think number one, the Asians are severely under represented in the USDA even today, and they are victims of discrimination, harassment and abuse.

Number two, the Civil Rights program whether it is structured under the Director of Civil Rights or the Assistant Secretary of Civil Rights, never gets things done and essentially it is awfully inadequate, under-funded and understaffed.

With this situation, I don't think things are going to change much. But again, I would urge the EEOC as well as USDA.. hey, let's educate, monitor and enforce. Thank you.

CHAIR EARP: Thank you. Madam Vice Chair?

VICE CHAIR SILVERMAN: Thank you. I want to thank all of the witnesses on this panel for your testimony and your stories. Dr. Jeang?

DR. JEANG: Jeang.

VICE CHAIR SILVERMAN: Jeang, you pointed out how the leadership of NIH looks dramatically different from the other scientists and the other employees, and you heard our earlier discussion about AAPIs tending not to come forward and complain about discrimination. In your experience at NIH, do employees come forward to complain either about the disparity at the top or at least the way people are selected where you don't go through any kind of process at all?

It seems like government, you have either too much process or no process at all, sometimes to me. And I'm just wondering, do they overtly complain, just complain amongst themselves? I mean, what's going on?

DR. JEANG: So, I can't speak for everybody at NIH, but I can say that some of us have, you know, gotten together and in 2005 we met with the Intramural Director. And also in 2005, you know, I wrote a letter to the Director, Dr. Zerhouni, about this issue.

COMMISSIONER ISHIMARU: The Civil Rights Director or the Director of NIH?

DR. JEANG: Director of NIH, Dr. Zerhouni, yes. So, to say to him that whatever, you know, ideas.. and I don't presume those are your ideas. . but if your ideas are that Asians are not capable, not interested and, you know, not willing to step forward, I want to disabuse you of these ideas. And we are, you know, large in numbers and capable and very much interested and willing to provide leadership and to contribute our share. Please call upon us.

So I did write to the Director of NIH and I did meet with several of my colleagues with the Intramural Director of NIH about this question. And at least, you know, from what I can see, you know, nothing really has changed substantively since 2005.

VICE CHAIR SILVERMAN: It seems like I've heard over and over again today this barrier of quantifying, qualifying leadership qualities and I was thinking about it, because oftentimes when we go out and speak we try to provide advice for people to stay afoul, not you know, of our laws.

And we talked about interviewing by panels to prevent individual biases. And I was trying to think about it as you all were talking, what could we do to get at leadership qualities that maybe other people don't perceive in the AAPI community that are clearly there?

I mean, are there questions we could ask, are there, you know, things we can think about and has anyone looked into this issue? Because it seems like this is our huge barrier, it's perception. I mean, number one of course is educating people that this is a bias, but number two is getting to it, it's getting to those questions and interviews and things like that. Has anyone given that any thought? I mean, Dr. Basu, you spoke directly on this.

DR. BASU: If you don't mind, repeat the question again for me please.

VICE CHAIR SILVERMAN: What I'm wondering is to get to leadership qualities in an interview setting, to make sure that they shine, to make sure that, you know, biases against this segment of the population, is there something that, you know, advice we could be giving, both within the government and outside.

DR. BASU: As a group, I don't think, you know, there are any deficiencies in terms of presenting anything in a positive way in terms of leadership qualities, et cetera. But, there is inherent bias amongst those folks who recruit and interview and all these kinds of things.

So as such, that creates the problem, that's ..

VICE CHAIR SILVERMAN: Right. But I was thinking .. okay, so the interviewer has a bias, but if they were required to ask certain questions, then they could be educated perhaps. I mean, maybe that's a naive approach. I was just trying to think what we could do, you know, what advice we could offer.

DR. BASU: It would probably take, you know, some kind of an action from the EEOC levels, some guidance and some, you know, but coming from within the service within the agencies is not going to make a difference.

VICE CHAIR SILVERMAN: Okay. My time's up.

CHAIR EARP: Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Thank you Madam Chair. I just want to make or be clear on something here. Your testimony is, is that Asian Pacific Americans are applying for these positions of advancement, of leadership and yet are not obtaining them. Is that correct and could you elaborate on how often people apply, are interviewed and then not selected? I'd actually like to hear from all of the panel members starting with Dr. Jeang.

DR. JEANG: So, I can tell you my own personal anecdotes because of course my access to information is also limited and I can also tell you the experience of other individuals that are my colleagues that we converse about this.

So I can tell you that I have applied at least twice, okay. And in the most recent case, it was sort of an interesting situation. In the process of applying for a position, you would of course, ask your senior colleagues to write letters for you, right, so you get their commitment because you're going to submit the application form.

So, as I asked one of my senior colleagues to write the letter for me, he said to me, he says, ”T, do you really want me to write this letter for you?” And I said,

”Yes of course. I mean, I think I'm very well qualified and I have a good chance at this position.”

And he said to me, ”Don't you know that this position is groomed for XYZ?”

COMMISSIONER ISHIMARU: So for a certain person?



DR. JEANG: And I thought, wow. I thought, well I've always sort of heard, you know, that this kind of thing goes on, okay, but I wasn't really quite sure that it actually, you know, that it would actually take place, right?

So I said, well let's give it a try anyway. And I figured that perhaps he was just, you know, confabulating or he was just making up a story or he was, you know, guessing.

And sure enough, after selection process, XYZ was selected. Okay, now, I should say XYZ is extremely qualified, okay, so I don't want to take anything way from this individual, okay. A colleague of mine, someone I respect, okay.

But nevertheless, I mean, the process was, you know, that was .. that's what I can tell you, that's my personal story, okay. And I'm sure other people can have their other stories ..

COMMISSIONER ISHIMARU: But from your experiences at NIH, are your Asian Pacific American colleagues applying for positions or are they waiting to be sought out? Are they actually applying and then not getting selected?

DR. JEANG: People like me, and there are a substantial number of people like me, okay, just from listening to me and from, you know, asking me questions, you know that I would go and apply for positions, that I would not wait for people to come and seek me out.

And I would argue there are many like me, okay. And we have in fact, you know, when we met with Dr. Gottesman in 2005, one of his suggestions was that, he said well, you know, there could be a problem in a sense that I don't know the names of people, so please bring me the CVs.

So, we went out and canvassed qualified Asian American scientists. We brought him 13 CVs to say next time there's a chief position open, please consider these, okay?

And I want to say to you that Dr. Gottesman is indeed very supportive of this effort, but he does not do the direct hiring, okay, it's the scientific directors of each of the individual institutes, okay.

COMMISSIONER ISHIMARU: But he would hold them accountable would he not?

DR. JEANG: I certainly hope so. I certainly hope so. So, to my knowledge, none of those 13 names in the ensuing three years, none of them has been tapped for a chief's position. And in the ensuing three years, I think there have been several different turnovers in that time.

So I'm not saying that there is any sort of deliberate machination, I don't think that there is sort of a conspiracy, but I do think that there is a problem.

COMMISSIONER ISHIMARU: Right. No, but I guess my question was getting to the fact, are people in fact applying? Are they making known their interest for these jobs? And you are saying yes they are.

DR. JEANG: I think so.


MR. LEE: In the law enforcement community, in the middle .. in the ranks of .. to come up from field working to a supervisor, we are getting some applications. We are .. our numbers are small all around, so we do get some applications, that's where I'm sitting now in

At the upper levels, no. I briefed those that are the SESs we do have at the highest levels and they continually tell me the same types of stories that they are not getting applications. I'll give you an example.

A colleague of mine left the ATF for this particular reason. He was told when he was brought into Headquarters, first of all culturally, we don't move a whole lot, so moving is a big difficult thing for Asian.Americans.

And so he came to Headquarters and was told, listen, we want to promote you, but you're going to have to move five more times. And he put family first and left ATF shortly thereafter and went back to California.

These are the examples and the reasons that are being told at many of the SES levels at the biggest agencies that we do have, which are very few.

The big agencies, DOJ and at the IRS are at our highest levels and we only have a few, a couple each in each agency, department level wise.

COMMISSIONER ISHIMARU: Dr. Basu, your experience at USDA?

DR. BASU: I shared earlier in my statement that when the interview process, you know, that's where they're limited.


DR. BASU: At the interview process.

COMMISSIONER ISHIMARU: Right, but I guess my specific question is, were Asian Pacific Americans at USDA, were they applying for these jobs?

DR. BASU: Yes.


DR. BASU: The answer is yes and to give you a good example, in one instance a job was advertised which required a minimum of four years of college training, meaning bachelor's degree.

The position that was applied for, the gentleman who applied for the position had two masters and a Ph.D. and as well has got a quite a bit of research experiences in that particular field. A high school graduate was selected for the job. And they justified, the selection team, this is the best candidate we got.


CHAIR EARP: Commissioner Griffin?

COMMISSIONER GRIFFIN: Mr. Lee, actually to all of you, thank you very much. I know this isn't the easiest thing to do.

When you talked about the moves, you know, is that understood for everybody that there's a requirement that you have to move 10 times in order to advance or is this, you know, a way of screening out people?

MR. LEE: A lot .. most of the agencies do have a move policy.


MR. LEE: To law enforcement, yes. I can only speak for law enforcement.


MR. LEE: We all sign a mobility clause when we sign on and I think every federal agent does, I believe. I'm not 100% sure of that. But certainly in the large agencies, we sign a mobility clause the day we sign on. And we expect, if we go into management, to be moved. But not as many times as some of the times we are being required to.

COMMISSIONER GRIFFIN: Okay. That would be interesting too. You maybe think that, you know, some of this study, you know, how many moves are we making different people and ..

MR. LEE: Right. And this policy is not applied, it's not a written policy ..


MR. LEE: .. and it is not a formal policy, it is a policy that changes by whoever is in the administration at that time.


VICE CHAIR SILVERMAN: When I was in private practice I challenged a mobility clause at an agency on disparate impact on women.


VICE CHAIR SILVERMAN: We got a settlement, just so you know.


CHAIR EARP: It's not unprecedented.

COMMISSIONER GRIFFIN: I like your idea about a separate report issued by the EEOC regarding, you know, the recruitment, hiring, advancement and retention of law enforcement officers who happen to be Asian.American and Pacific Islander. And I would hope that the workgroup, when they come up with their recommendations, would include that. I think there probably could be a series of separate reports and we have done things like that in the past. And I think they really serve to illuminate a particular issue within a particular group of people and even within a particular job category. So I would hope that we would be able to do something like that.

Dr. Basu, you talked about, you know, obviously a very long and challenging process that you went through to finally get the results that you got. And you obviously had a lot of interaction with our agency by doing that. And I was wondering, you know, is there any advice that you can give us or, you know, sort of helpful criticism about things that you faced while going through the process that would help us make the process better for people?

DR. BASU: I think one solid thing that we have going between the departments and the EEOC is the MD 715. That, very in.detail, lays out the data by grade levels, where are those and by also by ethnic categories.

The thing of it is, the EEOC can take that information, which has been submitted by the department and the department also get from the agencies.

That data in itself tells a lot of stories. I see what are the deficiencies and what is lacking. Why isn't it enforced on those data, on the basis of the data? Why are the agencies are not acting? Why the department is not enforcing?

So the question of again, monitoring enforcement is the answer to some of these problems. Without that, the things would be business as usual.

COMMISSIONER GRIFFIN: Yes. I think we grapple with the enforcement piece, and I think this agency has grappled with it a long time and we've tried a lot of different approaches in order to get agencies to do everything from doing investigations in a timely manner to really looking at their workforce and really identifying what are the barriers that are preventing some people from either getting in the door, or once they get in the door, from advancing.

And it's something we continue to grapple with.

DR. BASU: We find the enforcement also is lacking at the departmental level.


DR. BASU: When the Assistant Secretary for Civil Rights has got that information, he or she can enforce some of those on the agency heads to do something about it, which has not been done.

COMMISSIONER GRIFFIN: Yes. It's always interesting to me the agencies that don't seem to know about this data that they actually report to us. So I know that DOJ once got angry at me for saying in a speech that they, believe me, that's not the only category they're lacking in.

And I cited their facts, they just happened to be facts and someone actually said, where did you get that, I can't believe you said that about us. And I said, you gave us that data, we didn't make it up.

So a lot of agencies, although they report it, and maybe the agency had signed something when they sent it over, they're not paying attention to it, and they don't see it as important. And I do think it's our job to make them realize it's important. So thank you all very much.

CHAIR EARP: Commissioner Barker?

COMMISSIONER BARKER: I want to thank you all, along with the other Commissioners, for coming here today. And you know, I've read your testimonies last night and I thought I understood them and appreciated them, but I'll have to say that hearing that same testimony from you today had a totally different impact on me.

It's one thing to read what you have written, but to actually hear you say it and see your faces, you know, you can't help but really understand the depth of the situation, and I appreciate that.

And I think I just have one question for Dr. Jeang. As I listen to all three of you describe the individual situations that you had gone through, and express what I think was some indication that things have improved slightly, but still there's a lot that needs to be done, a lot of problems.

I'm wondering, Dr. Jeang, you have risen to a very high position, well it sounds like a very high position to me, I can't even pronounce it, within the ranks of NIH, and I'm wondering, to what extent do you think a young person, a young Asian.American following in your shoes, starting out with a career in the federal government as a scientist or as a physician would experience the same type of barriers?

And I guess what I'm particularly honing in on is the decision makers, the people who choose the people of the highest ranks. When those people retire, as we hear there is a large percentage of federal employees who will be retiring, do you think that our younger generation will have the same prejudices and the resistance to Asian. Americans that, frankly, my generation has apparently had?

DR. JEANG: Yes, thank you for that question. So first I want to correct, I don't actually have a very high position. So I'm sort of at a, sort of an entry level, sort of management position.

COMMISSIONER BARKER: For those of us who don't have science backgrounds ..

DR. JEANG: It sounds like a high position.

COMMISSIONER BARKER: Anything I can't pronounce sounds very impressive to me. So I'm impressed.

DR. JEANG: Yes. So, I look forward to the day when I think, you know, if and when the turnover comes, that there would be greater access by Asians into positions of leadership.

On the other hand, I hesitate to say that this is somehow a discriminatory sort of setting. In the sense that I think what hasn't really been done is to ask the hard questions and to get the answers back from the leadership.

So for example, the question was asked by Vice Commissioner Silverman, you know, what are the qualities that we're missing here, okay? You know, those of us on this side of the fence don't perceive that we have any deficiency in qualities.


DR. JEANG: What I'm not clear about is those people sitting on the other side of the fence doing the selection, why is it and what is it that they're perceiving that I lack in order to join them on that side of the fence?

So I think those questions have to be asked. You have to ask, why, if you look in a room of Indians, they're 40, 50% Asians doing the work and why when you turn around and look in the other room of Chiefs, there is not a single Asian face, okay.

The numbers don't compute, okay. Why is that? And if you can give us a good reason, okay, then perhaps we can address that reason. But so, right now I think we are at the stage where I don't think enough people in the right places are asking those questions.

Now, those of us, sort of the people below the ceiling are trying to ask these questions. And suppose the people above the ceiling just pretend that they're deaf. What are you supposed to do then? Okay.

So I'm hoping that we ask the questions, we get the answers, we work towards the constructive solutions to address the answers if there are substantive issues to address. And then we come in with the monitoring and the enforcement to see over time, okay, that there are indeed tangible progress.

That is what I'm hoping that will come out from all of these discussions.


CHAIR EARP: Commissioner Barker, I want to probe your question a little bit deeper. Now, Dr. Jeang, having been at NIH for 23 years, you are aware that until relatively recently, roughly 1993, `94, the rules for tenure track were not formalized.

DR. JEANG: Right.

CHAIR EARP: Nonetheless, any lab chief or branch chief at NIH that you randomly picked to say, who's going to make for a good tenure track scientist, they all thought they knew and they would tell you something.

My question is, both related to Commissioner Barker's question and your comment about the questions that need to be asked, what do you think the reaction would be to ask NIH to seriously study the lab and branch chief track in the same way 15 years ago it studied tenure track, and to begin the process of trying to regularize and formalize what's required to make that next step?

Is science so serendipitous that the community would bristle at that, or do you think something like that would be a viable solution to moving from bench to leadership?

DR. JEANG: I think that's an excellent first step that we should try to take is to formalize the process and to try to understand why certain individuals apparently can access that promotion and others cannot.

And right now, it's sort of, the selection process is not transparent and I think we need to really formalize, as we have done with the formalization of the tenure track criteria. I think that's an excellent proposal which we should try to embrace.

I really believe that the community at large is ready to embrace that. I just think that, you know, the questions and the proposals have not come from the right quarters.

CHAIR EARP: Okay. Thank you. Are there additional questions?

VICE CHAIR SILVERMAN: I just wanted to make one clarification and then .. what I was trying to say, Dr. Jeang, is what can we do to get the interviewers to ask the questions to get to those leadership qualities instead of making false assumptions?

So I just wanted to be clear that we recognize that the issue is on the interviewer and their bias and not the performance.

And I was thinking as you were talking about your experience at NIH when you applied and what I was hearing was, you know, I think what we refer to as sort of an old boys’ network where someone taps somebody else often it looks like them and that's their successor.

Also, a very, you know, highly.talented person, I'm not sure that they finished with a Ph.D. by 25, but, you know, from MIT and Hopkins and M.D. and all of that, I mean that's amazing.

And I was thinking, well, what is out there to sort of counter this and, you know, the Chair who knows NIH very well has a thought and I was just thinking about, because I've been involved in a lot of diversity private sector groups, another way to get to what we do here at the agency.

And I was thinking about, and this sounds like such a simple concept, but really high.level mentoring issues. A lot of companies are looking at groups that aren't moving up the glass ceiling, the bamboo ceiling, what have you, and trying to figure out, okay, what are they missing, what experiences, what relationships.

And forming relationships together with other people at those higher levels looking at their job assignments, looking at what they're, you know, who they're meeting and what they're doing to make sure that they are getting that same platform so that they can rise. And, you know, the private sector and the public sector are different, but I do think programs like that might be a great way to kind of counter the ceilings that we're talking about here, so.

DR. JEANG: Right. And so my response to your suggestions, my response is that, those are very good points that you make, but what we are poised at now is taking the next step. So we have Asians who have been mentored, we have Asians who have gone through the training programs, we have Asians who have answered the right questions and the interviewers have asked the right questions.

Now we want the selection, the next step, okay, is what you do after you ask the right questions, okay.

VICE CHAIR SILVERMAN: So you're still getting to that same thing?

DR. JEANG: I think very few individuals in leadership position would come up to you today and tell you, well, you know, the reason we don't hire Asians is that they're just not qualified, okay, they can't do the job, okay.

I would, you know, I would challenge you to go and ask those questions and I think most of them will say, ”Oh, you know, I just haven't really thought about this question and I didn't really see that there was a problem,” okay. I think that would be the most common answer you would get back, okay.

So I think it's important for the existing leadership to recognize a problem, to accept that it is a problem, to take concrete steps and then for there to be metrics monitoring and enforcement, okay?

And unless you do these stepwise, I think, you know, leadership is human nature and human nature tends to take the path of inertia and the path of least resistance. And if we're going to have to make change, change is always going to come with some difficulty.

CHAIR EARP: Do you have additional questions?

COMMISSIONER ISHIMARU: I actually do, Madam Chair. You know, you had said, Dr. Jeang that it's probably not discrimination, yet from where I sit as a civil rights lawyer and at an enforcement agency, it brings me back to the situation in Alabama with the state patrol back in the `70s and `80s where you had a virtually all.white police force and this was litigated as a discrimination matter all the way up to the Supreme Court.

The Supreme Court ruled there that, you know, if there are no people being hired, if people are just not being hired yet qualified to do so, there's a problem here. There's a violation of the laws of this country and we need to provide remedy to deal with it.

Here you have a situation where, as you said, people have done all the things that have been suggested; they've been mentored, the right questions have been asked, and yet at the end of the day, people are not being selected.

And you don't want to ascribe bad faith to somebody because it's a very .. selection is a very complex and difficult issue, but time and time again, when people are not getting selected for these jobs you have to ask what's wrong with this picture, and two, does it violate any federal law.

And for us here at the EEOC the question is, what should we be doing, what should we be doing within the authority that we have to go after situations like all of these where people are being interviewed, are not being hired, time and time again.

And I think, Madam Chair, it's something that we need to look at within the powers we have, within the powers of the Office of Federal Operations, what sort of roles should we be playing vis-à-vis the other federal agencies, and it can't all be done here, but we have a role to play.

You know, the one thing that I am disappointed in the makeup of this hearing is when are we going to talk to the people who actually do the hiring, who control the big picture, people from the Office of Personnel Management and from the various agencies?

How do you hold people accountable? And it's not a, you know, it's been a long.time problem. This is not a new issue, this issue has gone on for years.

But as we look forward for the new type of federal employee that we heard about in the first panel, that young people are coming in and out of government, how do we ensure, for the future, that people will come to the federal government and will pursue opportunities here and have a reasonable assurance that they will be able to proceed up the career ladder and not be excluded because they're from one group or another.

I think, Madam Chair, this has been a great start and a great opportunity to hear from one group. And I know many other groups have had complaints and issues. I know Commissioner Griffin has spent much of her tenure here pushing for hiring of more federal employees, people who have targeted disabilities. I think that's important. People from the Hispanic community have raised these issues and I know you've started a workgroup there.

And I think these sorts of meetings are good and they bring up tough issues that I think we need to grapple with, but just holding meetings, just issuing reports are only a start. And what I'd like to avoid is the cynicism that comes up when people say, well, they had a hearing on this, they've issued a report and then nothing's happened.

And I hope we're able to take those follow.up steps and I look forward to your thoughts on those as we go on through the course of the afternoon.

CHAIR EARP: Thank you. Any other questions for this panel?

COMMISSIONER GRIFFIN: I just have one. I want to agree with Stuart. I do think that, you know, no matter what it is .. and I think at a level at NIH, you know, people don't want to believe that it's discrimination.

But, whatever it is, if it's, you know, even if it's not, you know, done in a, you know, in a difficult way or, you know, with animosity, anything that results in, you know, 40 percent of the employees not making it in any meaningful way to the high ranks is discrimination.

It may be based on fears, myths, stereotypes, whatever, but that equals prejudice and it equals discrimination. So, I do believe that, that is what's going on no matter how you want to, you know, talk about it.

And I just want to say that, Mr. Lee actually mentioned this that there is this SES diversity bill, where Congress is actually looking at this issue along with OPM and I'm sure the Partnership is looking at that, as well.

To ensure that these panels of people that are picking these folks actually have representation from all of these different groups so that at least you'll have, hopefully some .. an Asian.American person on the panel educating the rest of them and when they hear things that may sound a little discriminatory they're able to actually challenge that.

And I would hope that, that does result in some changes within our federal system for SES. And I worry about the young people that do come in to any agency and look at the top. You know, and they look, these kids are smart, they look before they leap and they look at the top ranks and the Partnership is trying desperately to get younger people interested in federal service. And yet, if I was some of these folks and I was Asian.American and wanting to go to NIH, I'd say, hmm, something wrong with this picture. And this may not be the agency I go to. So, it has a really, I think, profound impact on people who want to come into federal government when they look at the situation. So, anyway, thank you.

DR. BASU: Madam Chair, in context of the discussion here, I think I might just want to add one element whether it is USDA or NIH or any other place.

Folks who can make things happen, who prevent things from happening are those sort of managerial positions at higher levels. I remember being part of that group for a while. It was a very rigorous process to write your position description standards, the standards for your performance.

And every performance standard was .. directly had to have linkage to the agency mission, their vision, and the program goals, et cetera, et cetera, et cetera.

When it came to the civil rights standard, there's nothing. It's so generic, although the agency is having serious deficiencies under.representation problem, et cetera, et cetera.

None of those performance standards are linked to those problems or to the civil rights plan or the strategic plan. This is something I think that maybe the Office of Personnel Management as well as EEOC could look into it and see what can be done to string that aspect to make things happen in the future.

CHAIR EARP: I would agree with my fellow Commissioners, I think that this is just a first step, but it is a very important one. Each of you present different perspectives and the underlying cause of the problems are, I think, somewhat different.

We may be dealing with a disparate impact situation at NIH, where it's not a disparate treatment individually singling out any group, but the policies and procedures that that organization has operated on for more than 100 years just excludes people that don't look like the group that founded NIH more than 100 years ago.

Law enforcement is one of those non.traditional careers we almost never think of in terms of the AAPI community. We tend to gravitate toward math, science, medicine, engineering.

And your situation being emblematic, Dr. Basu, of an administrative career that generally should never encounter the kind of barriers that you encountered. Each agency having a different culture, and what NIH can do in collaboration with OPM, the agency and others to begin a corrective process is going to have to be tailored. There is no cookie cutter for this community. The strategies and remedies are going to have to be as diverse as the community itself.

I want to thank my panel, it's very brave of you to come and share your perspectives. Let us know if there is even an inkling of retaliation. And thank you again. And I invite the third panel, which will talk to us about best practices, to come forward.

Our third and final panel on issues facing AAPIs in the federal government is going to present us with some hope that we can begin to turn this process around.

Sharon Wong, who is with Goddard Space Flight Center, NASA and Linda Bradford.Williams with HUD. Thank you for being here, for your perseverance. Sharon, why don't we start with you?

MS. WONG: Sure. Chair Earp, Vice Chair, Commissioners, colleagues and friends, thank you for the opportunity to testify before the EEOC. It is an honor for me to appear today to present best practices at NASA's Goddard Space Flight Center.

The Goddard Space Flight Center is one of nine NASA centers. In 2000, Goddard began in earnest its diversity journey, which is a separate program from our EEO program, but remains very complimentary to each other.

First, we credit the success of our diversity journey in large part to demonstrated commitment from leadership, strategic integration, accountability and proactive efforts, essentially the same elements that are characteristic of a model EEO program as defined in MD 715. At Goddard, our leaders are committed to creating and maintaining an equitable and inclusive work environment by actively participating in diversity events, workshops and programs.

Goddard's Deputy Director serves as the diversity champion for the center and also chairs the center's diversity council, a fully functioning and active council that continues to meet monthly.

I, as the special assistant for diversity, oversees and facilitates diversity initiatives and the creation of an inclusive work environment. I report at the center leadership level and I sit on our center's Executive Council as part of the senior leadership team.

Goddard's diversity council is comprised of individuals at the Deputy Director level and includes the employee advisory chairs, along with the director of the Office of Human Capital Management and the Chief of EEO.

Our advisory committees not only serve as advisors to management, but also as special emphasis groups, affinity groups, employee resource groups, whatever the terms are called in the agencies.

At Goddard, we have prepared and communicated a workplace vision statement, a business case for diversity, a diversity policy statement and directives and a diversity strategic implementation plan. Diversity is now clearly articulated as a Goddard value.

While the center has undergone several transitions in our leadership team, our leaders' investment in diversity initiatives and their commitment to diversity and inclusion has remained steadfast.

The message has been clear and consistent, diversity making space for everyone. Three signature programs form the basis of proactive efforts at Goddard. The Diversity Dialogue Project, which is called the DDP, Can We Talk program and the Goddard Opportunities Bulletin Board System or GOBBS.

A cornerstone of our diversity initiatives is the DDP, which is a facilitated dialogue process in which a small group of employees meet every other week for two hours, for six months.

The DDP is a forum for employees to begin to appreciate differences, to broaden our employees’ definition of diversity, to raise awareness of the various dimensions of diversity and to facilitate a deeper understanding of diversity issues among Center employees.

In 2001, DDP became a permanent program and more than a third of our civil servant employees have participated. We continue to receive positive feedback that it is changing the culture at Goddard and the mindset of our employees and managers.

To enhance the workplace culture and leverage the strength of the agency's workforce diversity, Goddard began holding “Can We Talk,” a dialogue with the center Director in 2004 as a monthly informal dialogue with employees on what's on their minds.

It is also held during the various heritage and history months. Example, a dialogue with the AAPI community during Asian Pacific American Heritage Month.

Another program is GOBBS, adapted from a similar program at EPA. Managers are responsible for utilizing our human capital to accomplish the mission and GOBBS is a tool for identifying a diverse pool of individuals otherwise not tapped for special projects or assignments.

Because every employee receives GOBBS notices on a weekly basis, all employees, not just a selected few, receive notifications of opportunities such as details, reassignments, special teams, any high.visibility projects and have the opportunity to apply if they wish.

Finally, it is not enough to have just diversity policies and procedures, committed leadership and awareness.raising activities. To change the culture, we needed to hold people accountable for their behavior and actions.

Since 2003, every GS supervisor performance plan has contained a critical element for EEO and diversity. In order for a supervisor to receive a distinguished rating, he or she must be rated significantly exceeds in all elements.

I, along with the Chief of EEO, review and concur with the significantly exceed ratings for EEO and diversity prior to the issuance of the supervisor's final evaluation. Disagreements are resolved by the center's Deputy Director, who is the diversity champion.

The key message is that this critical element requires a supervisor to take proactive steps, as simply checking the box is not acceptable for a significantly exceeds rating.

We are working towards eliminating the prior review for all so that diversity can be integrated as an everyday occurrence. We have seen a vast improvement in supervisors’ awareness of the importance of EEO and diversity and in demonstrating their level of performance.

Achieving mission success is possible by harnessing and nurturing the diversity that each individual brings to Goddard and to NASA. We believe that our leadership, our programs and the accountability measures are key to creating and sustaining an equitable and inclusive work environment.

Thank you for the opportunity to speak today. And I will take your questions after.

CHAIR EARP: Thank you. Linda?

MS. BRADFORD.WASHINGTON: Good afternoon, Madam Chair, Vice Chair, Commissioners, colleagues and friends. As the Director of the Office of Departmental Equal Employee Opportunity, United States Department of Housing and Urban Development, it is an honor to appear before the Commission to address this critically important topic.

The Office of Departmental Equal Employment Opportunity, other wise known as ODEO, is responsible for implementing the requirements of the EEO statutes at a minimum, including Title VII of the Civil Rights Act and 29 CFR 1614.

Today, I will address HUD's Asian-American Pacific Islander Special Emphasis Program and conference best practices. Our affirmative employment division, otherwise known as AED, has the ultimate responsibility for hosting all of the special emphasis programs for HUD.

The AED staff consist of a full time director and three full time equal employment specialists. However, in an effort to ensure inclusiveness and to develop events that capture various culture perspectives, we encourage and facilitate the participation of HUD.wide affinity groups in all of the planning stages of our special emphasis programs.

In the case of the Asian.American Pacific Heritage Month, employees have established the affinity group named HAPA, HUD's Asian Pacific Americans.

We use several venues to market our AAPI special emphasis programs and conferences. These venues include the department's internal website known as HUD At Work


We use this internal system to promote the AAPI special emphasis program by listing the keynote speakers, dates, times and locations of the upcoming events during the observance month.

We also use posters and banners designed by the affirmative employment division and our visual graphics department to display the particular special emphasis during that particular month.

The banners are hung in every lobby of the department's headquarters and the posters are displayed in strategic locations throughout the buildings heaviest foot traffic, including our field offices.

In tandem, once again with the visual graphics department, we also create flyers and programs for our AAPI observances. The HUD staff, along with other volunteers from the special emphasis committees, pass the flyers out the morning of each event and provide the programs to each program attendee.

Lastly, my office uses the ODEEO messenger, which is an e.mail message sent to all of the department's employees. Specifically, an electronic mail message is forwarded to all HUD employees the day before the event as well as the morning of the event.

We make certain to identify the participation of our senior staff so that the senior workforce and the employees are aware of our principal staff and our senior departmental staff will be in attendance of our special emphasis observances.

To ensure that our AAPI programs are well attended, we invite the Secretary, Deputy Secretary, the principal staff of HUD, including AAPI executives, to participate in each event.

For example, they may be invited to serve as a keynote speaker or to deliver the welcome address or to serve as a moderator for panel discussions. The presence and involvement of our senior staff tends to draw and support attendance of the department's workforce.

Additionally, we have invited and acknowledged external special AAPI guests to our programs, such as the President of the Federal Asian Pacific American Council, EEO and AAPI executives from the Treasury Department, the Census Bureau, Veteran's Affairs, the Federal Reserve Board, the Smithsonian, the Transportation Department, the Peace Corps, the Department of Commerce, the Department of Labor, Asian Fortune Monthly, the National APA Families Against Substance Abuse, Pan Asian Women and members of the University of Maryland Asian American Studies Program.

We also send invitations to our adopted schools and other neighboring schools in the Washington, DC area to join us for one or more of our events.

We also have a budget of $2,500 to fund our observances. To ensure that our AAPI training and conferences are well attended by HUD employees, we provide the conference information to every program office well in advance of the scheduled events so that employees have substantial opportunity to request the necessary travel, cost and training.

We strongly believe that these initiatives have helped us undertake the successes of our AAPI program observances.

Again, I would like to thank you for the opportunity to present this critical work that my office is continually doing to promote equality, diversity during our Asian Pacific American Heritage Month observance and throughout all of the other observances. Thank you very much.

CHAIR EARP: To set the stage for this round of questioning, Ms. Wong and Ms. Bradford-Washington were asked to address the area of engaging the AAPI community within the agencies.

The workgroup conducted a survey and we were pretty astonished to find that, even on matters of special emphasis programs, that Asian programs didn't get the support financially or from management that for example, Blacks in Government or LULAC or some of the other agencies gave to their special emphasis programs.

So, we were both looking for ways to justify diversity as a business necessity and to demonstrate to agencies that special emphasis programs can be the beginning of connecting the dots to have an engaged and inclusive workforce where AAPIs are concerned.

So with that as backdrop for this final panel, let me start with the Vice Chair.

VICE CHAIR SILVERMAN: Thank you both for your testimony. As I mentioned earlier, I had spent a lot of time looking at diversity programs and I really think that they really make a big difference along with what we do.

But I was wondering, whether or not you found ways to measure the impact that your programs have and specifically whether or not they are having any .. or a difference on the AAPI community.

Do you have any measures in place so you can see results?

MS. WONG: When you're talking about the way we have separated EEO and diversity, sure we'd look at EEO from a representation standpoint. So it's been difficult.

What we have been able to do is through focus group cultural audits, cultural surveys to see if there have been any movement in trend. What we have seen, we did surveys since `99, every other year, the last couple of years we have been surveyed out.

So, we have tended to do much smaller surveys, but our trend has tended to show that we are moving in a positive direction. Again, it's been more . . the questions have been more around the environment. Our winners include, Is your workforce welcoming, how do you feel about your supervisors, your managers.

And again, the trend has shown a positive move. We've also .. we do break it out by demographics as well. And again, pretty much movement in a positive direction.

VICE CHAIR SILVERMAN: I mean, I think sometimes general questions get to a general mood, which is opposed to a specific question, which you may not really answer as truthfully. So I think that's a good way to go about it.

What about you Ms. Bradford.Washington?

MS. BRADFORD.WASHINGTON: Yes. at HUD our numbers for AAPI have increased. For example, for fiscal year 2007, we are currently at 4.49%, up from .6% for 2006.

COMMISSIONER ISHIMARU: You went from what again? That's astounding.

MS. BRADFORD.WASHINGTON: 4.49% from .6% in 2006. And I would also like to say that, particularly in the SES capacity, we currently have three female SES Asian.Americans and one male. So that is a significant increase from 2006 as well.

COMMISSIONER ISHIMARU: So did 2006 have virtually none or one person I guess?

MS. BRADFORD.WASHINGTON: Yes. One. Yes. So there has been some movement and we're very proud of that.


CHAIR EARP: Commissioner Ishimaru?

COMMISSIONER ISHIMARU: I want to apologize to the Vice Chair for impeding on her time. (Laughter.)

VICE CHAIR SILVERMAN: I'm used to it. It's okay.

CHAIR EARP: She's used to it.

COMMISSIONER ISHIMARU: I couldn't help myself. It isn't always like that, Connie.

CHAIR EARP: Yes, it is.


COMMISSIONER ISHIMARU: Madam Chair, I noticed on the agenda for this meeting we also had scheduled to testify Patrick Pizzella who’s the Chief Human Capital Officer at the Department of Labor and I assume that he's not here because of a scheduling conflict.

But I found his statement to be fascinating because within the Department of Labor's program, there are a number of actual programs where people are being trained to bring .. brought up the ladder.

I would ask that Mr. Pizzella's statement be included in the record of this hearing and posted on the website because I think that's an important piece of this, different agencies are doing different things.

But Mr. Pizzella and his office and Secretary Chao should be commended, I think, for their concrete steps that they're taking.

I think, during the course of today's hearing, we've heard how diverse the AAPI community is on all sorts of levels and we sit here in Washington that has an increasing population in the metropolitan area, but it's true all over the country that, as population demographics shift and change, new people are showing up in new parts of the country.

And I think we can't make this just a Washington, DC problem or a West Coast problem or an urban problem, even though Professor Ong pointed out where the concentrations of population are. People are all over the country and federal employees are all over the country doing the important work that they do.

So I wanted to make that statement that we need to be looking at both the .. all ends of the spectrum for federal employees to make sure that we don't lose people at the entry level. We don't lose people who are joining federal service for the same time, we don't lose people who are coming back into federal service after being out for a while, given the nature of how employment has changed.

Most of these issues that we've heard about today are frankly not new. They've existed for quite some time. And I believe they need to be addressed in a thoughtful and serious and comprehensive way. And they don't really lend themselves to a band.aid type approach. It's one of these things that we need to have concerted effort at the various agencies, departments and agencies, to address these issues. People do it different ways depending on what their needs are, but I think the one thing that we've heard today, hearing from people from a variety of agencies is that it has to be a concerted effort.

And, I hope that this, again, is just the start of a much longer and, frankly, a difficult process that we need to see followed through. This can't be seen as window dressing at the end of an administration.

I'm glad we started it and as the Chair said, we plan to do more work in this area and I think that's a good thing. And I think people will be watching, because frankly, when we did the myths and realities forums back four years ago, people raised with me, they said, are you just doing this as window dressing, I said, god, I hope not. I hope not.

And I think this is a good signal, but a signal that more needs to be done. And I again commend you, Madam Chair, for calling the hearing. Both of these panelists are on the workgroup, right?


COMMISSIONER ISHIMARU: Can you or can someone talk about what the workgroups’ plans are when a report will be issued, who will it be issued to, how will it be shared with members of the Commission, what are we going to do next? Maybe you could address that at some point before the .

CHAIR EARP: Linda, why don't you comment on that?

MS. BRADFORD-WASHINGTON: We are currently in the process of putting together the final report, all of the different groups - the employment, the special emphasis programs as well as the complaints portion.

We are putting together a written report and that will be coming out shortly. We are also scheduled ..

COMMISSIONER ISHIMARU: Shortly in the federal sense of shortly?

MS. BRADFORD-WASHINGTON: Yes, shortly in the federal sense of we would hope in the next 30 days.


MS. BRADFORD-WASHINGTON: Yes. So we're very, very, very close to finalizing that report. But we've also been very proactive. We've presented at FAPAC, the Chair and Gazal Modhera and Sharon and I presented at FAPAC.

So we provided some of the preliminary information at the national FAPAC conference. And also we will be providing comments at the EXCEL conference. So it's not as though we have not provided some of the data ..


MS. BRADFORD-WASHINGTON: .. we just want to finalize the information.

COMMISSIONER ISHIMARU: Is the hope that this will be finalized and to the Chair before the EXCEL conference, which is in August, or as a possibility, I guess, but no one really knows? You want to get it done right, obviously.

CHAIR EARP: I'm not sure we're going to meet the EXCEL target, but everyone is aware that I've got roughly six months to get the report and figure out how we translate those recommendations into requirements, mandates, encouragements for the agencies.

MS. BRADFORD-WASHINGTON: And one of the other things is that we also wanted to gather and collect some of the information that was provided here today.


MS. BRADFORD-WASHINGTON: So some of the information that we've learned during this particular hearing, we would like to include that in the report as well.

COMMISSIONER ISHIMARU: Well that's great. I hope, Madam Chair, you'll use the talents that sit on this body to help you come up with a final proposal and you'll share these recommendations with us in due course and I look forward to seeing them.

CHAIR EARP: Absolutely. Thank you.


CHAIR EARP: Okay. Commissioner Griffin?

COMMISSIONER GRIFFIN: I want to thank you both. Have you seen that commercial where everyone's looking at the TV screen and they all say wow, right down to the flea that's on the cat, have you seen that?


COMMISSIONER GRIFFIN: When you said from .6 to 4.49, I said, wow. That's amazing. And I've become over the last couple years, I'm not the biggest fan of these special emphasis programs.

I think they started out a long time ago with some good intention to, you know, educate other employees about cultural issues, but I think they're kind of goofy right now.

And while I'm glad that yours is .. you're handling it evenly and you're putting the same amount of money into it and everything I think it's time for us to move on to something more meaningful and substantive that actually results in hiring, recruiting, hiring, advancing, you know, and forget the food and the dancing part, now let's move on to actually doing something. That's my own personal feeling about those programs. And I love that Goddard is actually doing something a little bit different, that they're actually using that time to have a dialogue with their leadership about issues and maybe barriers that they're seeing within the agency.

And I love that you built in an accountability piece because, again, what gets measured gets treasured and we actually do it if we're held accountable.

And so, that is amazing. Is that NASA.wide or is that just at Goddard?

MS. WONG: It's just at Goddard. We are .. the agency is actually working on a framework for diversity for all centers, and I've been involved with that. But at current time, it is not, but we are working towards it.

COMMISSIONER GRIFFIN: Yes, good. Is there anything you can tell us about how you got from .6 to 4.49 in one year? Because I think that would be probably the most important thing we hear today.

CHAIR EARP: Two years.

COMMISSIONER GRIFFIN: Two years, all right.

MS. BRADFORD-WASHINGTON: We would like to attribute it to education and training and we think that our special observance programs are considered training and diversity training.

And so, with that, we recently had a senior executive service candidacy program and out of that program, we had one Asian female that was recently selected and she's one of the new SESers at HUD.

But we do believe that education, training goes hand in hand with the selection process as well as recruitment.

COMMISSIONER GRIFFIN: I believe in the education and training piece too, and special emphasis programs, I think, should be exactly that and that, you know, some of them are.




COMMISSIONER GRIFFIN: Singing and dancing and food.

MS. BRADFORD.WASHINGTON: Exactly. And we have heard that.

COMMISSIONER GRIFFIN: And that's nice, you know, but that isn't really what people should be looking at.

MS. BRADFORD-WASHINGTON: Yes. And I think that's what makes our program different because we add that as well as having speakers to come and provide the training and the educational piece.

COMMISSIONER GRIFFIN: And getting leadership there.

MS. BRADFORD-WASHINGTON: Yes. And leadership and having our senior staff. As I mentioned, we do invite the Secretary of HUD and the Deputy Secretary as well as secretaries from other agencies.

The agencies that I mentioned that we have participated in our programs is generally at the secretary level that comes and participates at our special emphasis programs.

COMMISSIONER GRIFFIN: That's great. Now, but let's go back to the hiring piece because there's no way your special emphasis program did this and education did it. There had to have been a concerted effort in recruitment to actually go from having how many people to you now have, I have the numbers right here, 440 something?


COMMISSIONER GRIFFIN: So anything, any light you can shed on that, as a best practice for other agencies? Because that's astounding.

MS. BRADFORD.WASHINGTON: Well, no, like I said, I just believe that it's a partnership that we have working with our HR department, not just necessarily for education and training of the workforce, but educating the senior staff regarding diversity issues and hiring practices. I'm saying it from that standpoint, as well. And we, within the EEO office are making great attempts to ensure that our senior staff has a full understanding of the requirements of MD 715, which relates to the hiring of all groups.

COMMISSIONER GRIFFIN: That is great! That is absolutely great! It's phenomenal! So thank you.

CHAIR EARP: Does HUD have a mandatory requirement to select from your SES candidate development? I mean, Dr. Basu spoke of, he was certified to participate in the SES, but it took more than seven years for him to be seriously considered. I don't remember HUD, is it mandatory, how do you handle that?

MS. BRADFORD-WASHINGTON: No, it's not mandatory, because as a matter of fact, I was one of the candidates as well and I was recently selected as .. we had 10 candidates during the year of 2005, 2006 and it's not mandatory that we are selected.

We can be placed in a position or you can also apply for a position. And so the one female Asian.American that I spoke of, she actually is currently serving as the General Deputy Assistant Secretary for Policy and Research and Development.

CHAIR EARP: Was she placed or did she ..

MS. BRADFORD-WASHINGTON: She was placed in that position, yes.

CHAIR EARP: So you had an informed selecting official in that case?


CHAIR EARP: Commissioner Barker?

COMMISSIONER BARKER: Yes. Just a couple of questions. I'm just curious, with the whole glass.ceiling issue, is there anything else that either of you would like to do in your agencies, you know, provided that resources, you know, were not an issue to address the whole glass.ceiling issue for Asian.Americans?

MS. BRADFORD-WASHINGTON: Again, I would just like to continue to have a collaborative working relationship with HR. As an EEO Director, I think it's critical that we interact more with our HR office, that we participate more in recruitment, that we also have the opportunity to go out when they're doing recruitments at the universities and job fairs.

I think it's very important that we do these type of services And so that's the piece I'm speaking of when I'm talking specifically about training, the workforce as well as the executive level.

So I just think that, that's critical from my perspective as an EEO Director, that I work with the HR office.


COMMISSIONER BARKER: Ms. Wong, how about you?

MS. WONG: Totally, I'm in agreement with that. Those are the kind of things we do, the collaborative partnerships. Another thing that we have done building on that, is also working with our line organizations, because that's where a lot of the hiring and the work is done is within the line organization.

So in addition to our human capital office, which we have a great partnership with, we are working a lot within the line organizations, particularly our advisory committees, our special emphasis groups actually have regular meetings with the directors of the line organizations, because there are also specific issues and concerns within each organization, particular, you know, we'll have science and engineering versus mission ops or our accounting department and employees, depending on which line organization they're in, we are .. have high participation rates or lower participation rates.

So that's another area that we’ve started to focus on and find that, that's actually been beneficial within in the line organizations.

COMMISSIONER BARKER: Thank you both very much.

CHAIR EARP: Any other questions for this panel? Well I want to thank all of our panelists today, our experts, our federal employees who came forward and those of you who shared your story. For the audience, thank you for your patience and your perseverance to get through the morning and a little bit of the afternoon.

This meeting is going to recess one hour for lunch, but this is the conclusion of the topic of issues facing AAPIs. Again, thank you very much.

(Whereupon, the foregoing matter went off the record.)

CHAIR EARP: Religious liberty is, of course, one of the bedrock principles upon which this nation was founded and the passage of Title VII of the Civil Rights Act was an important step in protecting the principle that, in the place where workers spend so much of their time on the job, religion can be protected.

The U.S. Court of Appeals for the 4th Circuit put it well in a recent Title VII religious discrimination decision in favor of EEOC. The Court said, “Title VII makes plain that religious freedom in America entails more than the right to attend one’s synagogue, mosque or church. Free religious exercise would mean little if restricted to places of worship or days of observance only to disappear the next morning at work. In this regard, Title VII helps ensure the special nature of American unity, one not premised on homogeneity, but upon the common allegiance to and customary practice of our constitutional ideals of mutual respect.”

So with that, I'm going to ask our staff from the Office of Legal Counsel to present the Manual chapter for discussion and vote today, starting with you, Peggy.

COMMISSIONER ISHIMARU: Madam Chair, before Peggy and the team get started, I would ask that during the course of their presentation, that Jeanne Goldberg give the presentation that was given during the group's meetings that we had innumerous ones on.

The reason being is that when OLC was kind enough to have a number of meetings with outside entities as we were getting ready for this meeting, presenting it to them, they obviously did not have the document in front of them.

And Jeanne made an excellent presentation to the groups, the various groups that we met with that gave a good summary of what was in it. And I think for record purposes, we should have that on the record here as well.

I think that will help us if the document is approved to show that what was presented was in fact representative of the document. I think the document itself, because of its complexity, being a written document, is better served if the presentation is actually made on the record here.

So that's .. I don't know what's planned, I heard it was a multi.person presentation with some history as well, which I think is fine, but I thought Jeanne's presentation was very, very well done and I think it's important for us as a Commission if we do pass it to show what was presented to outside people.

CHAIR EARP: Is there any objection from the Commissioners to the request that Commissioner Ishimaru is making?

(No response.)

CHAIR EARP: None. Ms. Goldberg, are you prepared to present in the way that Commissioner Ishimaru has requested?

MS. GOLDBERG: I'll do my best.

CHAIR EARP: Okay. Thank you.

COMMISSIONER ISHIMARU: She, you know, she did a fabulous job. And I think having the table of contents in front of her, she went down and really gave a nice piece. So I would appreciate that. And I think in the long run, it will be helpful to all of us.



CHAIR EARP: All right. Let's proceed.

MS. MASTROIANNI: Good afternoon. Madam Chair, Madam Vice Chair and Commissioners. I am here to provide some background before Jeanne gives you the nuts and bolts of the Compliance Manual section on religious discrimination that is now before you for a vote and then all three of us will be happy to answer questions.

Six years ago, the Office of Legal Counsel began work on this Compliance Manual section. It was intended to consolidate and update longstanding Commission positions which were set forth in our regulations, 1980 regulations, in earlier policy guidances and in our litigation to set forth from all these sources our positions into one comprehensive document for use by our staff and our stakeholders.

Some very brief acknowledgments here before I move forward. Awo Sarpong Ansu, the first writing attorney on the project got it off to a great start and then the brilliant lawyering of Dianna Johnston and Jeanne Goldberg got us to where we are today.

Now, let me start by explaining why we wrote the section when we wrote it. There were compelling trends in the Commission's workload as well as significant demographic changes that led us to the conclusion that it was necessary, pursuant to the specific Commission powers that are enumerated in Section 705G of Title VII, to provide technical assistance in order to further compliance with the religious discrimination provisions of the Civil Rights Act.

First, the number of religion charges filed with the Commission increased 100% from 1992 to 2007 including a 13% increase last year to a total of .. for the year 2007 of 2,880 charges.

As a result, we have seen a dramatic increase in inquiries from our investigators who are dealing with these charges.

Second, the Commission has increased its litigation activity with respect to religious discrimination issues over the last six years, focusing on everything from discriminatory discharge to to religious accommodation suits involving religious garb and scheduling.

Third, the Commission has found it necessary to expand its outreach activities regarding the religious discrimination requirements of Title VII in response to a huge increase in the number of inquiries on religion and the workplace from both the press and employers.

So for example in 2007, the Commission's outreach included at least 227 presentations on religious discrimination issues.

And we also would note that the need for more education on the subject of religious discrimination was demonstrated very recently by the results of a February, 2008 customer satisfaction survey, which examined the extent to which Commission stakeholders were aware of their rights and responsibilities under Commission.enforced laws.

In response to a series of fact scenarios regarding race, pregnancy, harassment, age, disability and ethnicity, the vast majority of the respondents identified the correct legal outcomes.

However, two.thirds of the respondents .. and this was a range of people from employers to employees, all kinds of stakeholders in the federal and private sectors .. two.thirds of the respondents did not know the answer to a very simple question about whether an employer needs to allow an employee who is on his break to pray in an empty office. And the answer to that question is on page 74, example 48, if you want to check it out. Let me now move on to the demographic changes that also inspired this document.

While no one knows for sure, we have good reason to believe that an increase in religious diversity in this country, which is reflected in the workplace much to our credit, all the diversity is reflected in the workplace, that, that may also be contributing to the increase in religious discrimination charges.

A series of surveys first conducted by SHRM, the Society for Human Resource Management together with the Tanenbaum Center of Inter-religious Understanding in New York, they did a survey in 2001 in the Pew Forum on religion and public life, has done one in 2008. Both surveys report notable increases in religious diversity.

Driven in part by recent immigration trends, we have seen the number of Muslims in this country double, the number of Buddhists triple and the number of Hindus quadruple from 1993 to 2003.

In addition, new varieties of Christianity have taken root in this country as a result of immigration. All of these demographic changes are reflected in the American workplace.

I would also like to address the issue of public input into this document. Although this is a Compliance Manual section and not a regulation that must be published for notice and comment, the Office of Legal Counsel did receive input from a wide variety of stakeholders.

Specifically, in 2003 and again in 2008, we held a series of very productive meetings with religious groups, employer groups, unions and secular civil liberties groups, so four groups.

And in these meetings, we first conveyed our basic thinking on the major disparate treatment, harassment and reasonable accommodation issues, and secondly, we got input from these stakeholders regarding the issues that they thought should be addressed by the Commission.

Finally, how is the document before you different from EEOC's 1993 proposed guidelines on harassment that caused so much controversy among religious groups?

For those of you who were not at the EEOC then and that's just about everybody in the room, I think, except a few of us, let me give you some background.

The Commission approved a Notice of Proposed Rulemaking in 1993 that focused on the general principle that employers are required to protect employees from abusive epithets based on race, color, sex, religion, national origin, age and disability.

This NPRM was terse, with no specific discussion of religious harassment. The generic description of harassment in this document was one page with no examples.

Religious groups, in particular, became concerned that these proposed guidelines could be construed to require employers to stifle all religious expression in the workplace and controversy then ensued.

This Compliance Manual section is different in every way. First, it focuses on issues unique to religion in the areas of disparate treatment, harassment, reasonable accommodation and retaliation.

Secondly, at pages, we can hardly call it terse. To the contrary, it contains extensive examples and discussions of case law and nuanced discussions generally.

Third, and most important, it makes clear that an employee's right to engage in religious expression should be accommodated unless it poses an undue hardship.

In summary, the document before you is timely and relevant. Just as the Compliance Manual section on national origin was relevant when EEOC issued it after 9/11, and just as the enforcement guidance on care givers was very much of its time when you approved it last year, we now submit this document to you for approval.

Thank you for the opportunity to speak and Jeanne will get into the nuts and bolts.

MS. JOHNSTON: Because of the change in procedure, I'm here largely as a decorative element.


MS. JOHNSTON: Glad you approve. I guess the only thing I am left to say is I would like to acknowledge several people. First of all, this document would not be where it is without the work of a whole lot of people, including all of you and your staffs.

I mean, our documents uniformly are better products because of the collaborative process that we all engage in. And I particularly would like to thank Peggy and Awo and Jeanne Goldberg for all of their considerable efforts.

Peggy, has, as usual, demonstrated strong leadership. She's been deeply committed to this project and, you know, always her excellent judgment and amazing editorial skills have contributed a lot.

Awo, as Peggy said, got this project up and running and her hard work and thoughtful analysis had a lot to do with getting it going. Because it was such a big project, Jeanne was also assigned to the project and after Awo left, Jeanne was the one that ultimately had to carry it to fruition.

Jeanne's, you've seen and you will see again, I guess today, the thorough briefings that she has done show her excellent communication and analytical skills in presenting the practical and legal implications of this document.

I'd also like to thank Jeanne for her attention to detail, a skill that eludes some of us, and her very good humor and focus in doing all of this. All of that has made this .. today possible and has made her a pleasure to work with.

MS. GOLDBERG: Thanks. Okay, as Commissioner Ishimaru requested, I'll try to summarize what we told the stakeholders when we had the series of meetings with them in June ..


MS. GOLDBERG: .. that Peggy referred to.

COMMISSIONER ISHIMARU: I would like you to give the presentation you gave because I think it's important for record purposes to show people that what you were saying during the course of those meetings is consistent with what's presented today and then people can compare that to what's in the written document itself.


COMMISSIONER ISHIMARU: I thought the presentation was excellent and ..

MS. GOLDBERG: I understand.

COMMISSIONER ISHIMARU: .. this isn't meant to be harassing by any means, but I think for our own purposes, is important to have the briefing given.

MS. GOLDBERG: Certainly.

COMMISSIONER GRIFFIN: And it is phenomenal, it really is. If you haven't had the chance to hear this, and I actually sat through it several times. It was .. I learned something different every time I heard it.

MS. GOLDBERG: Okay. Well, with the caveat that I haven't looked at these notes in a month and a half, here we go.

CHAIR EARP: No pressure.

MS. GOLDBERG: When we met with the stakeholder groups, we told them that we were summarizing from a staff level what we expected the Commission would address in such a document, if it were issued.

As a roadmap, we told them that the staff would expect to track our own, EEOC's own extensive litigation in this area. And we provided the stakeholders with a handout of about pages of selected press releases reflecting the Commission's litigation in this area over the past several years so they could get a flavor of the kinds of cases that had been presented to the Commission and the litigation that we've been doing.

We told them that on many topics, the EEOC's positions taken in litigation in this area had been consistent with the case law that however, on some issues there may be particular court decisions with which EEOC disagrees, for example, in cases that we've lost and also in some that we haven't been involved in.

And that historically, the Commission has noted in its publications where it had disagreed with particular courts of appeals decisions that have received a lot of attention and explained how the Commission's analysis would be different.

We also told them that we expected the document would track EEOC's existing guidelines on religion, which are published at 29 CFR Part 1605, and which will remain in effect even if the Commission approves the Compliance Manual chapter today.

We explained that, to the extent that constitutional rights or obligations are raised, sometimes as a defense to Title VII claims of religious discrimination or accommodation that we would address the scope of those constitutional rights and obligations.

For example, where a private sector employer might contend that it would violate its own First Amendment rights of free exercise of religion or free speech if it were compelled under Title VII to provide a particular accommodation.

Or alternatively, that a government employer might contend that its obligations under the establishment clause of the First Amendment would be violated if it were compelled to provide a particular accommodation that was requested.

We said that we expected the document would note where the analysis on a particular Title VII issue might be different in the federal sector versus the private sector and that the Commission would reference, as a resource, the 1997 so.called White House guidelines on religious discrimination in the federal workplace, which continued to be referred to by many em

ployers as a resource or a guide in this area and that we had tracked in preparing the document.

With respect to the definition of religion under Title VII, we explained that religion includes beliefs, practices and observances that are not only theistic, but also non.theistic, moral or ethical beliefs sincerely held with the strength of traditional religious views. That's the language from the part 1605 guidelines including new or uncommon beliefs, beliefs that are not part of a formal church or a sect, beliefs that are only subscribed to by a few people or are completely idiosyncratic, even if they seem illogical or unreasonable to others.

But we also noted that sometimes the Commission's guidelines have been misread to include non.religious, political or social views or practices within the definition of religion under Title VII.

And we expected, we said to give examples that would make clear the distinction between religious and non.religious beliefs. For example, we said as courts have recognized, and EEOC has said, membership in the KKK, which some individuals have alleged would be a religious belief under Title VII is not. It's a mono.faceted political or social view.

And we also explained that for some practices, one might have to consider what the motivation is, because some people engage in that practice for religious reasons and other people for secular reasons. And so whether a particular individual’s practices within the definition would require scrutiny of their particular motivation.

We gave the example of vegetarianism, which is engaged in by Seventh Day Adventist for religious reasons, would be a protected religious observance or practice under Title VII, but vegetarianism observed for health or social reasons would not be.

Similarly, another example we gave in that arena was tattoos or other body decorations and that EEOC had handled a case out of our Seattle office involving an individual who filed an ancient Egyptian religion kemeticism, pursuant to which he followed an observance of having certain religious tattoos on his wrist, which the employer wanted him to cover up, pursuant to its dress and grooming code. And the individual as an accommodation wanted an exception to the dress and grooming code so that he could display his tattoos. And we gave the example of EEOC's position that the tattoos in that instance were a religious observance.

In comparison, we said body art, as an end in and of itself, tattoos that were not pursuant to a religious belief would not be within Title VII's definition of a religious observance or practice.

With respect to the definition of the terms sincerely held, we explained that, that's not relevant in disparate treatment or harassment cases.

However, in accommodation cases, because an employer only has to provide an accommodation if it's requested for a sincerely held religious belief, this is an issue in some cases where employers contend as a defense that they did not have to provide the accommodation because, although the belief identified by the individual was religious, it was not actually sincerely held by that person.

We explained that as EEOC argued successfully in the 1st Circuit case Union Indpendiente, that mere variable observance isn't necessarily dispositive with respect to whether a particular belief or practice is sincerely held.

In other words, there may be other explanations in the facts of a given case for variable observance, an individual may have recently converted. They may have a degree of adherence that has ebbed and flowed during their lifetime or particular events as were discussed in that 1st Circuit case that caused a greater degree of observance and that it would not automatically mean that the individual did not have a sincerely held religious belief just because it was not consistently observed at all times. But, that that inconsistency would be a fact that could be analyzed by an employer and the court in order to determine whether the belief was sincerely held.

With respect to the definition of religious organization, which as you know is a statutory exception under Title VII, we explained that we thought the document would address how religious organization exception has been defined for religious organizations and religious educational institutions to allow them to prefer to employ members of their own religion.

Consistent with how the courts have interpreted these provisions, we discussed that we would expect the document to lay out the factors that courts use in deciding whether a particular employer is a religious organization that is permitted to prefer co.religionists.

Such factors as, whether the articles of incorporation state a religious purpose, whether the services the entity performs, the products it produces, the educational curriculum it teaches are directed toward propagation of the religion. Whether it's not.for.profit, whether it's affiliated with or supported by a church or other religious organization.

And finally on religious organizations, we said we expected the document would emphasize, as the draft before you does, that as EEOC and the courts have all agreed, that where the religious organization exception does apply under Title VII, it only applies to religion. It does not allow a religious organization to discriminate based on race, color, national origin, sex, age or disability.

With respect to the ministerial exception under Title VII, we explained that we would expect the document to review the case law in this area and how the exception has been interpreted. This is, of course, not a statutory exception under Title VII, but a judge.made, case law.made exception under the First Amendment wherein courts have concluded that clergy members cannot bring civil rights claims under any of the statutes that we enforce because it would implicate First Amendment establishment clause entanglement considerations.

We explained that this exception, where it does apply actually bars not just religious discrimination claims by clergy members, but claims on any basis under the statutes that we enforce, noting also, however, that some courts have made an exception for harassment claims by clergy members, concluding that those would not implicate the same .. analyzing those claims would not implicate the same entanglement considerations.

And we told the groups that what we expected was that the document would note the existence of those harassment cases, but not take a position on them one way or the other.

With respect to disparate treatment, we told the groups that we expected that the document would make clear that the usual rules apply to disparate treatment based on religion as applies to disparate treatment on the other bases under Title VII. Specifically, with respect to recruitment, hiring, promotion, discipline, discharge, compensation and other terms or conditions or privileges of employment.

We expected that .. we told them we also expected that the document would make clear that disparate treatment based on religion can also apply to disparate treatment of religious expression giving the example of an employer that allows a Christian employee to have a Bible on his desk, though does not allow a Muslim employee to have a Quran on her desk.

We also said we would address the customer preference defense - so.called customer preference defense - and explained that it's not a defense under Title VII in this area as it's not in others, spotlighting EEOC's post.9/11 backlash cases as an example. Those cases have often involved situations where employers did not want to place an individual who wears Muslim or Sikh religious garb in a customer service position out of a desire to cater to customer bias.

With respect to security requirements, we said that we expected that the document would explain that employers have to apply security requirements in a non.discriminatory manner with respect to religion. In other words, that employers can't require only Muslim applicants, because of their religion, to undergo a background investigation or more extensive background or security procedures based on their religion while not requiring individuals of other religions to undergo such procedures.

With respect to the bona fide occupational qualification, BFOQ defense, we explained that the document would acknowledge that in theory this could arise in a Title VII religious discrimination case, but that, for the most part it does not come up because the same employers who might typically seek to raise that are often religious organizations that can avail themselves of the statutory exception.

With respect to harassment based on religion, we told the groups that we met with that we expected the document would make clear that EEOC and all the courts have stated that the legal analysis for religious harassment is the same as the legal analysis for harassment on any other basis under Title VII. But that sometimes, there are unique fact patterns in religious harassment cases that present unique legal considerations.

Specifically, we told them that we expected to give examples of harassment based on religious coercion, where an employee is pressured to abandon or adopt certain religious beliefs or a degree of religious observance as a condition of being hired or promoted or continuing to be employed.

We said we would also expect to address a range of diverse examples involving hostile work environment harassment that's unwelcome, severe or pervasive, and whether or not religion is specifically mentioned in the harassing statements or conduct, but where religion is the motivation for the harassment.

We also told the groups that we would expect that the document would address a unique issue that arises with respect to religious harassment and that is the need for employers sometimes to balance their anti.harassment obligation on the one hand and their accommodation obligation on the other in situations where one employee's religious practice is claimed by another employee to constitute religious harassment.

And we told the groups that we expected that the document would explain how legally and factually important it is for an employer to distinguish between situations where, for example, two employees are having a consensual conversation on time that might involve religious matters or even a spirited debate about religion or even proselytizing versus a situation where one employee complains about being proselytized or the religious expression at issue is disruptive or interfering with work or the religious expression is facially abusive.

In the latter situation, the employer would have an obligation under its anti.harassment obligations under Title VII to take action to ask that the religious expression stop as to the objecting employee.

We told the groups that we expected that at the same time, the document would warn employers against trying to avoid potential harassment claims by suppressing all religious expression in the workplace. And that that was very important because otherwise, employers would risk missing situations where they had an accommodation obligation with respect to religious expression that would not pose an undue hardship.

With respect to reasonable accommodation and undue hardship, we told the groups that we expected a publication in this area would explain the current law regarding reasonable religious accommodation, how it's defined, that a reasonable accommodation is one that eliminates the conflict, unless an undue hardship is posed, that the undue hardship under Title VII is defined as anything more than a de minimis cost or burden on the operation of the employer’s business. And that we expected the document would emphasize that this is a much lower standard than under the ADA where the defense by the same name, undue hardship, is defined instead in that statute as significant difficulty or expense.

We said that, along the lines of the Supreme Court's decision in Ansonia many years ago, we expected that the document would make clear that an employee is not entitled to insist upon a particular accommodation. That if there is more than one possible accommodation that would eliminate the employee's conflict that the employer can choose which accommodation to offer.

And we also said that we expected the document would address recent decisions by the 4th Circuit, EEOC v. Firestone and another Circuit Court decision Sturgill v. United Parcel Service to the extent that those cases rejected EEOC's view of what is a reasonable accommodation.

We explained how the Commission expected to set forth .. we would expect that the Commission would set forth in this document its own view as it urged in the EEOC v Firestone case of what is a reasonable accommodation.

We also said we expected the document would note EEOC's recent victory in the EEOC v Southwest Bell, a case which is now on appeal, that involved the infrequent payment of premium wages applying the principle as stated in the Part 1605 guidelines that where it is truly infrequent that an employer may need to pay premium wages to a substitute employee and that may not constitute an undue hardship.

We also discussed that along the lines of the EEOC's victory out of our Phoenix office in EEOC v Alamo Rental Cars that the document would make clear that an employer needs to accommodate an employee in his or her own current position if that's possible before resorting to trying to transfer them to a lesser position and in particular, before resorting to transferring them to a non.customer service position or some other position that is considered lesser.

As far as the mechanics between the employer and employee on a reasonable accommodation request, we said that we expected the document would address the fact that no magic legal words are required to request accommodation, but that the employee has an obligation to put the employer on notice of the need for accommodation and that it's for a religious reason. And that it behooves the employer to ask for clarification if the request is unclear rather than just rejecting it out of hand.

We said that we expected the document would address when and how an employer can ask for some supporting verification. We said that the document we expected would say that supporting verification is typically not needed for the employee to show that the belief at issue is religious or that it is sincerely held, but that there are some cases where the employer has bona fide doubts about that and that in those instances, if the employer has an objective basis for questioning the religious nature or sincerity of the belief, that the employer can make a limited inquiry into the facts. But that, we expected the document would say that the employer can't insist on a particular type of verification. And we called the groups attention to the fact that EEOC has litigated several cases successfully involving instances where employers improperly insisted upon a certain type of verification.

For example, insisting that there be a letter from a clergy member or a letter from a church in an instance where the individual may have a sincerely held religious practice, but not even be affiliated with a church or be affiliated with a church that doesn't have a clergy member.

We also called their attention to the recent suit that EEOC and Department of Justice together filed and settled against the state of Ohio involving this issue and that was a case involving whether a .. in order to receive a religious accommodation with respect to payment of union dues, the union could insist that a member be .. the employee be a member of a church that historically objected to unionism and EEOC and Department of Justice challenged that in the case that was settled.

We also said that we expected that the document just would try to emphasize from a practical standpoint to employers that often the employee’s own explanation to the employer will be sufficient and that there won't be a need then for some kind of verification, but that if the employer feels that there is a need for third party verification, they should keep in mind that it shouldn't have to take a one.size.fits.all required form and that it may be even that a neighbor or family member could corroborate that there is a sincerely held religious belief.

With respect to undue hardship issues, we discussed seniority systems and collective bargaining agreements and said that we expected the document would make clear, as the EEOC and the courts have, that an employer never has to violate a seniority system or a CBA in order to provide an accommodation. But, that the document would presumably emphasize the many ways in which an employer might be able to provide, allow, as an accommodation for scheduling problems due to a religious observance, voluntary substitutes and shift.swaps that do not violate a CBA or a seniority system or other means of flexible scheduling.

And we told the groups that we expected that the Commission would explain, as the draft before you does, many other ways in which employers might consider possible flexible scheduling arrangements.

With respect to undue hardship defense that .. the undue hardship defense or argument that employers sometimes raise, based on co.worker complaints, we told the groups that we expected the document would make clear that mere disgruntlement or resentment or jealousy of co.workers is not itself sufficient to establish undue hardship and that generally an employer would need to show that the accommodation at issue would actually infringe on co.workers interests or cause disruption.

With respect to security considerations, we told the groups that if it's not a requirement that's imposed by a law or regulation, an employer would have to show that it would be an undue hardship for it to make an exception to its usual security requirement as an accommodation.

And we explained that it's really a determination, that the context really matters, that we thought the document would even emphasize that what type of garb or practice is at issue or what type of workplace you're talking about, might be taken into account in determining whether the particular accommodation sought that the employer opposes on security grounds, does in fact, pose an undue hardship.

We gave the example of Department of Justice's recent settlement of a case against the New York State Department of Corrections in which the Department had a blanket rule against any religious garb worn by correctional officers, and Department of Justice settled the case successfully pressing the position that there should be a determination of every accommodation request, even for religious garb in a para.military or correctional officer setting.

And in that case, what was at issue was a khufi that if it was found if in dark blue or black and given the close fitting nature of it, it did not present the same security considerations as would have been posed potentially by other kinds of religious garb.

We also told the groups that we expected EEOC would give an example in this area involving a kirpan and told them that EEOC's currently litigating two cases against Manor Care in courts, involving employees who seek to wear the kirpan, a Sikh article of faith and the employer seeks to bar it based on its policy construing the kirpan as a weapon in violation of that policy.

We said that we expected that EEOC would give examples based on those cases but would also emphasize that the size and other facts would be relevant. Again, emphasizing a fact specific inquiry in determining whether an undue hardship is posed and that we expected the document would also cite federal law that applies with respect to weapons or knives including kirpans in certain federal facilities, again, emphasizing the fact specific nature, the location of the workplace, the type of work and so on.

With respect to scheduling changes, we said that we expected the document would emphasize, as I said earlier, that an employer may be able to accommodate employees who have religious conflicts with their schedule by allowing flexible arrival and departure times, floating or optional holidays, flexible work breaks, use of lunch time in exchange for early departure, or other types of staggered work hour arrangements and that we expected the document would encourage employers to consider flexibility in that regard in addition to the other types of accommodations that might be available for scheduling conflicts, such as leave, shift swaps and substitutes.

With respect to voluntary substitutes and shift swaps, we told them that we expected the document would highlight EEOC's litigation in this area, especially the EEOC v. Robert Bosch case, a big appellate victory that OGC had last year involving an employer who, on paper, permitted shift swaps or substitutes but in reality was conveying the message to employees that those would not be approved and how those rules are applied.

And we also told them that we expected the EEOC would cite in our publication EEOC vs. Aldi and EEOC vs. Texas Hydraulics, two recent cases that EEOC settled involving instances that are exceptions to the usual rule, the usual rule being that the employer has to allow shift swaps or substitutes but doesn't have to find one for the employee.

These two cases involve the exception, we told the groups, where because the employee’s religious belief not only prohibited working on the Sabbath, but also inducing others to work on the Sabbath, that the employer had to do more to try to arrange a substitute or make the request for the employee in the workplace.

With respect to change of job tasks and lateral transfer, we told the groups that we expected the document would explain that whether accommodating an individual in this way would pose an undue hardship depends on the nature and importance of the duty at issue, the availability of others to perform the function, the availability of other positions to which someone could be transferred, and the applicability of any collective bargaining agreement or seniority system.

We told them that we expected EEOC would use the example of the Noesen case from the 7th Circuit, a recent appellate decision involving a pharmacist who sought to be excused from dispensing birth control and to use the different scenarios that were discussed in that case to explain in the document that, for example, if the pharmacy set.up was such that there was another available co.worker who was qualified and able to service a particular customer, it would be a reasonable accommodation.

The court said in that case, and it was the employer offered it, to allow the religious objector to signal the co.worker to service that particular customer or put the caller on hold and signal the co.worker to take that call while the co.worker switched duties.

We told the groups we would also discuss what the court ruled in Noesen would pose an undue hardship, would not be a reasonable accommodation, which would be allowing the pharmacist not to service customers in situations where there wasn't an available other way to serve customers or where the undue hardship was posed for some other reason.

With respect to dress and grooming standards, we, again, told the groups we expected the document would emphasize the nature of the determination, practical solutions for dress and grooming code exceptions, if there's no safety issue. We told them that the document would caution employers not to assume that there's a safety issue posed. We even gave the example of an OSHA standard that makes an exception to enforcement of certain OSHA hard hat rules where someone can't wear the hard hat due to their religious headgear.

We discussed with them the Cloutier decision from the 1st Circuit and that we expected that with respect to that decision, the Commission's document, if issued, on this topic would caution employers to proceed with caution about relying on the broad rubric of image to deny a requested religious accommodation because, in a given case, that might run up right against customer preference, which is not a defense. We gave the example in that regard of the EEOC vs. Red Robin Gourmet Burgers, the Kemetic tattoo case that I mentioned earlier.

With respect to use of employer facilities, we said that we would expect the document to explain that this might be required as an accommodation if it would not pose an undue hardship but that the document would probably say that the location or other logistics need not necessarily be of the employee’s choosing. In other words, if there's more than one location whereby .. with which an employer can accommodate an employee's need, for example, for a quiet place to pray, the employee doesn't necessarily get to choose which room the employer offers.

With respect to tests and other selection procedures, we told the groups that we expected the document would note that accommodation can apply to these, that there could be instances where an applicant requests that an interview or a test be rescheduled due to a religious observance and that an employer might be required to do that if it did not pose an undue hardship and in that instance could not allow it to affect their selection decision.

With respect to providing social security numbers, we said we expected the document would note that in all instances courts have said that it's an undue hardship for an employer to excuse an employee from providing those.

With respect to union dues and agency fees, we discussed with the groups that we expected the document would address both those situations where an employee objects to paying union dues because he has a religious objection to unionism and also, those situations where an employee objects to paying union dues because he has a religious objection to the social or political causes to which the union lends support with those funds. And we discussed with them that we expected the document would address how the courts have applied the charity substitute accommodation that applies in these situations as well as other options for accommodation that have been used.

With respect to prayer, proselytizing, and other forms of religious expression in the workplace, we said that we expected the document would make clear that an employer has to accommodate religious expression if doing so would not pose an undue hardship.

We said we expected the document would say that it would pose an undue hardship to accommodate religious expression, for example, where it interferes with work, where it's disruptive, where it is complained of by another employee as unwelcome harassment and that there may be other instances as well. An additional example that we addressed of where an undue hardship might be posed was where the religious expression might be mistaken, legitimately mistaken, by co.workers or customers as the employer's own speech.

We talked in that regard with the groups about what we expected the document would say about the effects of religious expression on the workplace rights of co.workers or on customers and how one determines whether the religious expression poses an undue hardship. That we expected that the document would, for example, make a distinction between a religious message or icon that an employee seeks to display in his own work area as opposed to in the lobby or greeting area of the employer's facility, that depending on where the employee's assigned workstation is, whether this would pose .. that would be relevant to determining whether an undue hardship was posed because it would be relevant to whether the message might be mistaken as the employer's message.

We discussed that we thought the document would address the distinction courts have made between religious greetings in anonymous or brief transactions versus instances which courts have typically held do not pose an undue hardship to accommodate versus situations where an individual wants to include a religious message in official work emails or correspondence, which courts have typically held is an undue hardship to accommodate. It could be mistaken as the employer's own message.

With respect to employer sponsored programs, finally, we discussed that the document would likely explain, as the courts have held, that an employer .. if a private employer, has its own First Amendment rights to religious free exercise and expression in the workplace, and therefore an employee can't insist that religious programs in a private workplace be canceled as an accommodation but that we expected the document would explain, as the position EEOC and the courts have taken, that the accommodation in such instances is to excuse the individual who objects on religious grounds or lack of religious belief from participating as an accommodation if it would not pose an undue hardship.

We discussed that we thought the document would address examples of prayer services or other religious events at work in which instance it's almost never an undue hardship to excuse someone from attending, versus situations where for example an employer is providing training on EEO laws or other employer conduct requirements in which case it could be an undue hardship to excuse an individual from participating, even if they have a religious objection to participating in that type of employer program.

We told them that we also thought the document would address the intersection of religion, national origin, and race and the kinds of cases in which that arises spotlighting EEOC vs. Sunbelt Rentals, the recent 4th Circuit decision from which the Chair quoted in her opening statement and other litigation in this area.

And finally, that with respect to retaliation, we expected that the document would restate the positions that the Commission has already taken on retaliation in the existing Compliance Manual chapter on retaliation. Thank you.

CHAIR EARP: I can't believe it, I think I agree with Commissioner Ishimaru, that was brilliant. Thank you.

COMMISSIONER GRIFFIN: Actually, each time we heard this, you wanted to give her a standing ovation. Really, didn't one group clap?


CHAIR EARP: Outstanding. Well, thanks to the three of you and now we will open for questions, comments, statements, starting with the Vice Chair.

VICE CHAIR SILVERMAN: I, too, want to thank the Office of Legal Counsel who've worked on this document, particularly our speakers today. I want to thank all of you and Awo.

And I also want to recognize Reed Russell who inherited this longstanding project, and he recognized its importance. And I think since the day he got here he's championed it and worked very hard to get us here today. So thank you, Reed, as well.

You've all done a tremendous job of clearly and comprehensively describing the law on religious discrimination under Title VII, and your patience has been outstanding throughout the process.

I've spoken on numerous occasions over the past few years at American Bar Association meetings, at seminars and employer programs to HR professionals on the issues of religious discrimination. And through all of those experiences, it really became clear to me that there is still much confusion in this area of the law, too much confusion for my comfort level.

I found that even seasoned HR professionals and even some lawyers attending ABA meetings ask questions that demonstrated a fundamental basic lack of understanding of this issue area. It is a nuanced area of the law, but it needed .. we needed to do something. And so I really wasn't surprised at all to learn recently that when EEOC commissioned a survey of the American public, our survey showed the exact same thing that I had found.

We found as someone had already mentioned, that the vast majority of people surveyed did not seem to realize that employers must accommodate employees’ religious beliefs absent undue hardship. They felt it was within the supervisor’s rights to quote, "Keep all religion out of the workplace." I think, you know, somewhere along the way this is how people started thinking.

But I want to emphasize that what we're doing here is not new and it's really not novel. Instead, we're really simply trying to put forth a document that explains the state of religious discrimination law. It talks about the cases, it talks about the cases we’ve brought et cetera in the most clear and mostly comprehensive way possible, which is why it's long because it's a very comprehensive document.

And I believe that this document will go a long way to ending confusion about religious discrimination and educating employees and employers about their rights and responsibilities.

Again, I want to thank you, Jeanne, Dianna, and Peggy and Reed and Awo, I don't know where you are, for all of your incredibly hard work on this project.

And I see that I still have time for questions, so I wanted to know, you talked about these groups that you spoke to recently, and I think you had spoken or the Office of Legal Counsel had spoken to groups some years back. I wanted to know what groups specifically you received input from and just a little bit more about that process.

MS. MASTROIANNI: I can speak generally to the process, and then Jeanne can tell you exactly who we spoke to. In 2003, we had four separate meetings, first, with religious groups, then with employer groups, then with unions, and then with the secular civil liberties groups. And each of those .. all told about 50 groups attended those four sessions, each attending one.

The sessions were two to three hours each, and then we had another meeting in `03 as well with all of them together. So the first four sessions were essentially to get a lot of input, and then the final session that we held with all of them was to sort of share what we were thinking.

Then in 2008, we had five meetings and they were just a few months ago. And again, they were about two to three hours each, they were attended by Commissioner Ishimaru, Commissioner Griffin, and representatives of the Chair and Vice Chair's offices.

We invited 75 plus groups and including all those suggested by the Commissioners or the Vice Chair or the Chair's offices, and we had 44 attendees, again. And there .. and we had four separate sessions for the groups I named and what we called a make. up session where we had sort of a combination of people.

And Jeanne can tell you more about the specific groups.

MS. GOLDBERG: Okay. In 2003, the attendees included the AFL.CIO; Agudath Israel of America; the American Jewish Committee; the American Jewish Congress; the American Civil Liberties Union; Americans United for Separation of Church and State; the Anti Defamation League; the Association of Corporate Counsel; the Baptist Joint Committee; Christ African Theological Institute; the Christian Legal Society; Church of Scientology International; Church of Jesus Christ of Latter Day Saints; the DC Catholic Conference; the Equal Employment Advisory Council; the Evangelical Lutheran Church of America; the Family Research Council; the Joint Baptist Committee; the General Conference of Seventh Day Adventists; the Hindu Temple; the Institute on Religion and Public Policy; the International Brotherhood of Electrical Workers; the Islamic Supreme Council of America; the Lawyers Committee for Civil Rights Under Law; Lutheran Office for Government Affairs; the National Association of Evangelicals; the National Association of Manufacturers; the National Conference for Community and Justice; the National Council of Churches; the National Education Association; the National Sikh Center; the National Federation of Independent Businesses; People for the American Way; the Presbyterian Church U.S.A.; representatives from a law firm representing building and construction trade unions; Service Employees International Union; Sikh Media Watch and Resource Task Force; the Society for Human Resource Management, SHRM; Soka Gakkai International; Southern Baptist Convention; the U.S. Conference of Catholic Bishops; the U.S. Chamber of Commerce; the UAW; the Union of Orthodox Jewish Congregations of America; the United Methodist Church; the United Hindu and Jain Temples; and the Washington Buddhist Vihara.

For the meetings in 2008 ..

CHAIR EARP: Can you just mention the ones that are different from perhaps that first list?

MS. GOLDBERG: I can't do that.

VICE CHAIR SILVERMAN: I keep waiting for my school to be announced because then it would be a snow day.


COMMISSIONER ISHIMARU: Or maybe Madam Chair, we could put this in the record and provide a printed list on the website.

VICE CHAIR SILVERMAN: Would you be willing to submit that? That would be great. Thank you.

MS. MASTROIANNI: Just in terms of how those meetings went, Jeanne gave her presentation, and she did get a standing ovation at the first one from the religious groups, I believe. And then Reed had everyone go .. we went around the table to give their input in terms of what they wanted to see if the Commission issued guidance. And the attendees at the meetings in 2008 overwhelmingly urged that we issue practical guidance now.

CHAIR EARP: Thank you.


CHAIR EARP: So you'll submit the 2008 list for the record, and we'll publish it on the website?


CHAIR EARP: Commissioner Ishimaru?

COMMISSIONER ISHIMARU: Thank you, Madam Chair. As we ended this morning's session, it dawned on me that I neglected to welcome my new colleague, Commissioner Barker, and I wanted to do so now.

COMMISSIONER BARKER: Well, I'm offended.


COMMISSIONER ISHIMARU: Well, if pattern holds up, it probably won't be the last time.


COMMISSIONER ISHIMARU: But it's delightful to have a new member of the Commission as my colleagues have said. And I think, again, it goes to the record of this administration of really nominating and appointing very good people to the Commission.

Connie Barker has quite a background and brings quite an impressive career to the table and will be a huge asset, I believe, to the Commission. I welcome you.


COMMISSIONER ISHIMARU: I look forward to working with you, and for the life of me, I don't know why I didn't do it this morning. So welcome.

As many of my colleagues know, I have the utmost respect for my friends in the Office of Legal Counsel. The work that you've done on this document and other documents is really outstanding. And as Jeanne's presentation showed, it was without question an excellent piece of work. I have some reservations, though, as I've shared with my colleagues about, where we are and the difficulties of these issues and when you issue guidance like this.

Having worked on religious issues during the Clinton administration where I worked with Dianna Johnston when the White House was working on these issues, I learned then, quite vividly, how difficult they are and how when you think you have and you know all the answers, other things pop up. And that painted to me the difficulties of voting on this document in an election year and my concern that this might be taken by someone as being a political creature, not that from my review of the document, I didn't think it was, because I think it's a balanced document. I think it's a fine restatement of the law as far as I know.

And after Commissioner Griffin and I met with Reed Russell and his staff about this issue, we insisted that we have these meetings. That's one thing that Peggy left out of the recitation that there was no plan to hold meetings until Commissioner Griffin and I insisted on it.

I also wish that the Commission itself would have held meetings on this. It has been, I don't know how long, since the Commission had a meeting on the issue of religion. And there have been episodes in our history, and I think back to the aftermath of September 11th when Chair Dominguez, to her credit, spent a lot of time and effort and resources in reaching out to the Muslim, Arab, South Asian, Hindu populations and others to say the EEOC has responsibilities you should know about, you're welcome to come here with your complaints.

I think to her credit, that was the right thing to do, and I'm glad she did it. On the other hand, we have not had a meeting on these vital issues, as far as I know, in recent memory. And I think we would have been well served to have meetings like we had this morning, where we heard from people from various religious communities about the issues that some of them raised during the course of these meetings as we did with other forms of guidance that we've issued in recent years.

To my regret, that did not happen, and we're here today with this document in front of us. And that's why I wanted Jeanne to give this basic briefing that she gave to the various groups so folks could see how it was similar to what she said during those briefings. And I think she gave a good recitation that tracked the things she said during those briefings.

There's also an issue that comes up with pending pieces of legislation and whether this will have an impact on what's known as the Workplace Religious Freedom Act. And there’s a footnote, I believe, in the version that's in front of us that explicitly says, this is not to have an impact, we don't intend it to have an impact. And frankly, if the Act is passed, if it's enacted, we would have to go back and consider how changes might need to be made to this document, if in fact the Commission adopts it.

But I think on the whole, you know, the document does a good job in balancing the various concerns that are out there. And it deals with such issues as the employee's right to religious accommodation cannot be allowed to trump their co.workers’ Civil Rights.

For example, we say in the guidance that it's unreasonable for an employee to expect to be excused from training on a sexual orientation, inclusive, non.discrimination policy on the grounds that the employee objects to homosexuality on religious grounds. The employer's interest in maintaining a positive work environment for a diverse workforce trumps the employee's desire to be excused from the training. And accommodation is not reasonable if it requires the employer to compromise his or her internal non.discrimination policies or run afoul of state or local civil rights laws.

Dealt with the very difficult issue of providing contraceptive services and reproduction services that Jeanne talked about during her presentation, it talks about the balance between proselytizing and harassment, and I thought it did that well. And it also addressed the difficult issue of how do you deal with union dues, as you also talked about.

So, as I told a colleague of mine last night, I'm not sure how I'm going to vote and I guess it’ll come down to when the Chair calls the roll. But I must say, it was, you know, a nice piece of work. And my quibbles here is with the process of how we got here. And I think the Commission is better served when we have public meetings, when we use this platform to explore the issues that we have in front of us and I regret that, that did not happen. Thank you, Madam Chair.

CHAIR EARP: Commissioner Griffin?

COMMISSIONER GRIFFIN: I actually want to also express my congratulations to the Office of Legal Counsel, particularly Peggy, Dianna, Jeanne, and especially Reed Russell for the diligence and leadership that you brought getting this .. we're not easy as you know, getting this document forward.

But more importantly, I actually want to thank the Chair because without your leadership, we wouldn't be here discussing this document and voting on this guidance today.

I, like the survey respondents that Peggy referred to, have the least amount of knowledge about this area of employment law, I really do. And it was important that I sit through as many of Jeanne's recitations of what could possibly be in a guidance document as possible, and I learned a lot. I'm still blown away by the ministerial exception. Who knew that we can discriminate against our clergy, ministers, rabbis you name it, but I guess we can. So, that I still just find shocking.

And because of that, I, you know, as we went to great lengths to allow folks on all sides of the issue to weigh in. I realize it's possible that there are some concerns out there that we haven't considered and that I just don't have the ability to comprehend at this time.

And I would hope that, you know, if after this document is voted on and issued that if anything does come up, that all of us will agree that we'll address them. If there's something we missed out there, and we spent a lot of time asking everybody, are we missing anything, you know, is there anything that you didn't hear that you want to put forward, I know there'll be somebody out there that didn't come to one of those meetings that was invited that will have something to say. And if it really is something that affects, you know, something we said arguably wrongly or inartfully that we will actually be able to address it or if there is an omission. So I would hope that we could do that because freedom of religion is considered to be, you know, a fundamental right.

And the First Amendment, Jolinda found this for me, I actually .. I don't think I ever really looked at this quote because I guess I only think of the second part. But the First Amendment prohibits the federal government from making a law respecting an establishment of religion or prohibiting the free exercise thereof. I don't think we think of that first part very often or at least I don't.

There are however, limitations to free expression, and they often come up in the context of employment. That's where we see it really sort of butt against each other as employees and employer and employee relationships. And further confusing the issue, the answer to questions about what is and what isn't allowable often turn on who the employer actually is, whether it's a private corporation or a public entity.

And I think this Compliance Manual thoroughly discusses a lot of scenarios that help answer those questions, and I would encourage all employers and organizations like EEAC and SHRM and others to get this document and get it out to everybody, share it with employees, talk about it and really try and get everyone to get a little bit clearer on what type of behavior is permissible in the workplace.

It is an area that we just don't all know enough about and carry around probably misconceptions all the time. But, there are limitations to the right to religious expression. And those limitations are in place, specifically to protect civil rights of everybody. And so I want to congratulate you on a very good document.

I, too, would hope maybe in the future after this is issued, we could have a meeting on this topic and hear what people have to say after they've had a chance to really see the document and review it. I think that would be illuminating.

So, thank you very much, and I'm yellow, and I turn the balance of my time over to Connie.

COMMISSIONER BARKER: Good, that means I get 29 extra seconds.

COMMISSIONER ISHIMARU: Not under Robert's Rules.


COMMISSIONER BARKER: I want to join with everybody else in congratulating the Office of Legal Counsel and especially you three ladies for just an excellent job. This was an extremely well researched document and a very accurately researched document.

I too, had the benefit of hearing Jeanne's summary, and she gave me the document, and I spent a lot of hours with the document, and, you know, it's 94 pages long, but a lot of it is well.established Title VII law, you know, a lot of it should not come as a surprise to any of us.

And I'm certainly familiar with, you know, some of the fundamental Supreme Court cases, Faragger, Meritor Savings, and Ellerth, that are cited in religious discrimination just as they are other Title VII cases. So those parts should not come as a surprise to anybody.

I will readily admit that philosophically, I do not agree with every single case decision. And there are some decisions that are District Court decisions that I suspect in the next few years will change. But for right now, I do believe that this is a very correct snapshot of the law at this time. I think the courts are going to be grappling with this for some time.

The very fact that the five of us, who are supposed to know something about Title VII, you know, had pieces of this that all surprised us, tells us that the courts are going to be grappling with some of these distinctions too.

I personally think that the definition of religion is something that's going to be further developed with time because that's a really difficult concept to get your hands around. You know, the distinction between what is a religious .. a sincerely held religious belief and what is something slightly less than that I think is something that we're going to have to look carefully to the courts to determine.

I also think that undue hardship is something that we're going to see more and more exceptions to as the courts grapple with details. This is a very, very fact.driven area of the law. And, you know, the devil is in the details, and it's going to be those little variances in cases that are going to further develop this area of law.

And I hope that this does not become a political issue, but frankly if it does, it's our job as Commissioners to take that political risk. We're not here to be political animals; we're here to do the right thing. And I know that's a cliche, but frankly, you know, I have confidence that we're all going to vote the way we feel in our conscience is the right way to vote today and, you know, we take the political consequences.

I do think .. I'm so excited that so much time has been spent on education because I do think this is an area of the law that employers are going to need a lot of help with, Peggy, I really do. And my concern is not with the big corporations; my concern is with that small employer, the mom and pop 15 to 20 employer size. So, you know, I hope that we have the resources to educate them so they won't inadvertently violate the law. Thank you.

CHAIR EARP: Thank you, Commissioner Barker. Shall we begin a second round of questions, comments?

COMMISSIONER ISHIMARU: I have a procedural or not a procedural question but a follow-up question assuming that this passes. That this is a 90-plus page document, it's a lawyer’s document, very well documented. But we use this to both educate small businesses, large businesses; we use it to provide guidance to our investigators. Is there a training plan in place typically of how you would then roll this out because this seems to me, strikes me as more intense, if you will, than some of the other pieces we've done in the past? Has thought been given to that?

MS. MASTROIANNI: Commissioner Ishimaru, the training plan starts tomorrow.

COMMISSIONER ISHIMARU: But what would it be?

MS. MASTROIANNI: Well, actually a piece of that is a 10-page version of this document that will be released along with it. But we also plan to train our investigators, and we expect to get many more requests for Commission staff to speak to employers, and hopefully we can get those small employers as well.

In terms of training our staff, that is the piece, Commissioner, that we have to get to work on now. The process of getting to this point has been kind of all consuming, but we know that's our next job.

COMMISSIONER ISHIMARU: But a 10- page summary will be issued along with this so people will have the shorthand version?

MS. MASTROIANNI: Yes, well, and also, yes. And also a list of best practices, all the best practices that are in this document will be .. have been pulled out and issued as a separate very short document, verbatim.

COMMISSIONER ISHIMARU: Great. Thank you. Thank you, Madam Chair.

CHAIR EARP: Any further discussion?

VICE CHAIR SILVERMAN: When you say educate our investigators, I mean, our investigators are one of the audiences this is meant for. But we've also educated them about religion and the state of religious law in the past. I mean, again, I don't think what we're saying here is particularly new; it's just that we're kind of putting it all together so that people have an understanding. I mean, that's always been my impression.

I mean, I've gone to you before when I've had questions of religion, and you’ve worked with me to talk about the law and we've looked at what other documents are out there that we've issued, et cetera, cases we've brought. It's pretty much what's contained in here is that a correct understanding?


VICE CHAIR SILVERMAN: So you've worked with investigators before, but this is just another resource for them here?

MS. MASTROIANNI: Yes, but we would like to have some organized way of presenting some kind of training within our monetary limits specifically on this.

COMMISSIONER ISHIMARU: Could I follow up on one issue that Commissioner Barker raised about how the law may change and how .. what the thinking is of how you address changes in the law to the various cases that are cited.

Do we do periodic updates; is that something that needs to be passed by the Commission? How do we deal with it for the various Compliance Manual pieces that we already have adopted?

MS. MASTROIANNI: Well, yes, the Commission does vote on any update to a Compliance Manual section. With respect to changes in the law, we wait until there's enough so that we really have to do something and try to do it in a coherent way.

Using the example of WRFA, which would change the undue hardship standard and make it more like the ADA, if that were to pass, and we have no knowledge that, as you know, it was introduced in the 1990s, and we couldn't tell you when and whether it will become law. But if it did, that is an example of a law that would require whole scale changes.

COMMISSIONER ISHIMARU: But if a case is overturned, do we address it on the online version of the manual, or do we make note of the fact that a case has been overturned by a higher court?

MS. JOHNSTON: Typically, we would not, unless it was a change in the law. I mean obviously, if the Supreme Court speaks and changes a position, then yes, we have to go back and revisit it and make whatever changes are appropriate.

But, you know, as you know in these Compliance Manual sections, you know, we explain the law and the Commission's position on the law. So the fact that one court may end up taking a different position would not be a reason for us to change the document.


MS. MASTROIANNI: Let me give you an example from ADA, if I may. When the Supreme Court issued the Sutton trilogy, we had to find mitigating measures. Everywhere in our existing ADA guidance where we had given our position, which was the majority of the Appellate Courts’ position on mitigating measures; we had to online, do a notice that Sutton had changed that. If the ADA is itself amended by the ADA Amendments Act, I think that might be an example where we would do a very, very careful look at everything we have issued and make an assessment under Reed's direction about, you know, where we'd go.

COMMISSIONER ISHIMARU: And I guess from hearing about the online version of our Compliance Manual that's provided by private providers, I assume that they would make note that a subsequent court case may affect the guidance.

MS. MASTROIANNI: I don't know if they've done it with simply, for example, a District Court decision that gets reversed or however .. for example, our notices about Sutton for all the ADA materials they are reflected in the commercial versions as well.

COMMISSIONER ISHIMARU: Oh, no, no. But if we didn't do anything because it was not major enough, would the online versions address it? That's a question that I have, having been briefed recently about the online version.

COMMISSIONER GRIFFIN: I know on the disability stuff, they make note of different decisions, they just, you know, alert people to the fact that there's a decision saying either supporting or against a particular piece of the law.

MS. MASTROIANNI: You know more than we do at I think at this time.

COMMISSIONER GRIFFIN: So I don't know in this area what they do, but you know, I do know, you know, in disability they always alert you in a little text box or something to changes.

CHAIR EARP: Well, you wouldn't expect the contractor to behave differently on one part of .



COMMISSIONER GRIFFIN: They're always looking for ..

CHAIR EARP: Further discussion?

(No answer.)

CHAIR EARP: Okay. Hearing none, is there a motion to approve the Compliance Manual section on religious discrimination?


CHAIR EARP: Is there a second?


CHAIR EARP: Thank you. Is there any further discussion?

(No answer.)

CHAIR EARP: Hearing none, all those in favor please signify by saying aye.

ALL: Aye

CHAIR EARP: Did I hear unanimous?

COMMISSIONER ISHIMARU: You need to ask for the nos, Madam Chair.

CHAIR EARP: Any opposed?

(No answer.)

CHAIR EARP: Hearing none, the item is approved 5.0, the vote .. the motion carries. Thank you. Thank you very much, nicely done to the three of you.

Final item on today's agenda is a resolution honoring Ethel Kendrick of EEOC's Office of Communications and Legislative Affairs. Diane Dillon, Director of the Office of Communications and Legislative Affairs will present the resolution. Welcome.

MS. DILLON: Thank you. I have a statement in lieu of the resolution, which I was requested to provide.

Thank you for allowing me to appear before you this afternoon to present my case for recognizing Ethel Lee Kendrick with a Commission-sponsored resolution honoring her 35-year career with the Equal Employment Opportunity Commission and saluting her tireless and dedicated service toward promoting the mission of the EEOC in the Office of Communications and Legislative Affairs.

As the Director of the Office of Communications and Legislative Affairs and the Director under whom Ms. Kendrick retired after 38 years of distinguished service in the federal government, and in consultation with Ms. Kendrick's immediate supervisor, a decision was made to honor Ethel's tireless and valued service with a special recognition in the form of a resolution from the Commission.

I respectfully request that this Commission approve her resolution, which salutes Ms. Kenrick's long career in federal service and her exemplary performance with this agency.

It is our hope that a resolution formalizing the Commission's regard and appreciation for her valuable contribution to this agency would serve as an inspiration to colleagues and to others considering a similar career dedicated to federal service.

Ethel Kendrick began her career in federal service in 1966 as a summer student first with the Department of Agriculture and later with the Department of Labor. She entered the federal workforce full time back in 1970 at the Office of Economic Opportunity and joined the EEOC in 1973. During her many years at the Commission, Ethel displayed an unwavering commitment to serving the public with excellence in all of her professional responsibilities.

In 1988, Ms. Kendrick took on the responsibility of Congressional liaison and in that capacity built and maintained strong affective relationships with the agency's Congressional constituencies.

From her first day at the EEOC until her retirement, Ethel's work performance illustrated uncompromising support for the agency's mission and to promoting the equal employment opportunities for stakeholders country.wide.

Ms. Kendrick's integrity and work ethic exemplify the meaning and spirit of the best in civil service. In appreciation for her many contributions to this agency, professional and personal, I'm requesting that the Commission approve this resolution.

Thank you for allowing me to present this case.

CHAIR EARP: Thank you, Diane. We'll now have questions and comments from the Commissioners. Vice Chair?

VICE CHAIR SILVERMAN: I have no questions.

CHAIR EARP: Commissioner Ishimaru?

COMMISSIONER ISHIMARU: Thank you, Madam Chair. I was the one who voted to have this resolution discussed at a public Commission meeting because I was concerned about what I see as favoritism that's driving who gets Commission resolutions at their retirement. This frankly has nothing to do with Ethel Kendrick as Diane Dillon and I and Sylvia from her office discussed in an earlier meeting.

You know, over the course of my tenure here, I've seen these retirement resolutions coming through for a vote every once in a while and almost always for very well deserving people.

But, at the same time, I know there have been hundreds of others who have retired from this agency after a record of distinguished service, who receive no recognition from the Commission. Starting with the previous Chair, I asked questions about what was the criteria for determining who gets a resolution? And the answer I always got was that it was subjective. It was up to the discretion of the top managers to propose a retirement resolution for their staff.

And even if favoritism is not the reason why some people get resolutions at their retirements and others do not, the criteria for who gets a resolution are so subjective that it gives the appearance of favoritism may be the reason.

This favoritism or appearance of, is likely part of the reason for the low rating in the 2006 Federal Human Capital Survey at this agency, finding that only 7.2% of our employees strongly agree and 24.5% of our employees agree with the statement that awards in my work unit depend on how well employees perform their jobs. Over 19% strongly disagreed with this statement.

My larger concern is that the type of favoritism and the appearance of favoritism leads to low employee moral, probably explains why many of the low ratings our agency received from our employees in the 2006 survey.

This is a management problem and as such, it is not something which I have authority to change, but I do have the power to place things on the agenda, and that's what I've done today.

I know that to truly improve employee morale we would need to make a significant change in how we operate, such as backfilling vacant positions or authorizing new hires. I hear over and over again as I travel to our various offices around the country or communicate with staff, in both the field and Headquarters, that they feel completely understaffed and overwhelmed with the amount of work that they need to do.

But again, this is only something that the Chair has authority to change. Frankly, I don't know why this has not been addressed. The under staffing is the most generous explanation I have for why there is a lack of activity in some of our more pressing initiatives of the Chair, for example, the decision by the Chair to delay the implementation of the internal objectives of E.RACE.

Madam Chair, on Monday of last week I asked for time to talk to you about this decision since we had worked closely in a bipartisan manner on the initial idea of the initiative, yet we have not heard back from your scheduler. I hope we'll have a chance to talk about this next week.

There are other examples as well of the lack of activity due, in large part, to staffing. We had not had, until today, a substantive meeting at this Commission in well over a year. I'm glad we started that up. I'm glad Commissioner Barker has joined us so we can again address some of these issues. But I am troubled by what has gone on over the past year.

As I mentioned at our last meeting, I'm troubled by the most recent strategic plan proposed by the Chair. And I know that when we talked about it at our meeting last month, I was concerned in part because it eliminated the organizational measure to be a model workplace. It seems that we need to retain that as a measure because with the low morale of our staff, much more needs to be done to make the EEOC a desirable place to work.

Fortunately, the approval of the strategic plan is a Commission responsibility, so perhaps I will be able to convince my fellow Commissioners that it is important to maintain a goal of being a model workplace before our next meeting on July 28th in which we will be again discussing the strategic plan.

I voted to place the retirement resolution for Ethel Kendrick on the agenda of the next Commission meeting because in May of this year, yet another retirement resolution was submitted to the Commission, and when I asked, I again was told that the decision for submitting the resolution was to be completely subjective and no steps had been taken by the Chair's office to make this a fairer process.

In May, my staff informed the Chief Operating Officer of my concerns regarding the policy related to retirement resolutions and that I would not vote by notation vote for any retirement resolutions until a more objective standard had been put into place to say thank you to those who are retiring.

When the current retirement resolution had reached me, still nothing had been done by the Chair's office to put this in a more objective standards, even after I had been asked to present my concerns to the senior staff at a meeting in mid.June.

After my current agenda vote, the Chair's office does appear to be thinking more seriously about how to address the issue of retirement resolutions, so I'm hopeful that this agenda vote has served its purpose and I may not have to put other retirement resolutions on the agenda of a Commission meeting.

Let me conclude by saying I want to be clear that this agenda vote was not about Ethel and that whether she deserves a retirement resolution. I think she does, and certainly I would not have written her a note on the day of her retirement party to wish her well, and I hope that she's enjoying her retirement.

My agenda vote was about a management problem over which I have no control, but I'm trying to help move along to be solved. I thank you, Madam Chair.

CHAIR EARP: Commissioner Griffin?

COMMISSIONER GRIFFIN: I know that, you know, we've had some discussion about this. You know, I do support Commissioner Ishimaru's effort for us to develop a policy that is fair, that, you know, everybody who, whatever it ends up being, meets a certain number service, years of service or whatever it is upon retirement or leaving the agency, that we recognize them.

I think it is catch as catch can at this point and, you know, I think some people for whatever reason, you know, would like us to recognize them and yet, for whatever reason, somebody isn't putting them forward, or someone isn't agreeing with it when it's put forward.

So, it would be nice to have a policy that is fair. And it never was about Ethel, and I hope Ethel does know that.

CHAIR EARP: Commissioner Barker?

COMMISSIONER BARKER: No comments, thanks.

CHAIR EARP: Is there further discussion on the resolution before us?

COMMISSIONER ISHIMARU: Well, Madam Chair, I guess I'd be interested in hearing from you if there are plans to try to deal with the underlying issue because, frankly, I don't enjoy putting these things on the agenda, but I must say that the lack of responsiveness from your office has been telling that .. this is not rocket science of how to deal with how do we honor our people when they retire and how do we do it with a semblance of fairness so people are honored when they retire.

And that is not done because some people are favored and some people may not be. And I must say that I've seen it time and time again and people have been unwilling to deal with it in any form or fashion. And I think we need to do that because I think for fundamental purposes of morale at this agency, you can't honor some people and not others.

CHAIR EARP: Commissioner, from my point of view this has been Commission policy and procedure for the last 30 years. It may be flawed, it also may not be the number one issue that I've devoted the last two years to. Nonetheless, I am quite happy to entertain whatever recommendations the Commission has about making a change. I do not view it as the Chair's responsibility.

Commissioners vote on resolutions; we all have to vote on them for them to be passed. So I don't view it as the Chair's responsibility to unilaterally decide that 30 years of Commission history, practice, procedure is inappropriate, fundamentally unfair, or otherwise need to be changed.

But I'm happy to ask you, appoint you to lead a group to establish some criteria to change this tradition that the Commission has had.

COMMISSIONER ISHIMARU: Madam Chair, this is the one thing .. personnel issues are the one thing that is specifically within the authority of the Chair. And to say that it's not my issue, I think, frankly, is not palatable.

CHAIR EARP: I think it's the Commission's issue. Personnel issues, hiring, firing, signing off on bonuses, that is my responsibility. Commission resolutions are signed by all sitting Commissioners.

I think the Commissioners should decide that there will be a change and what the nature of that change will be. And I'm happy to consider and go along with the majority on any change that the Commission would like to institute.

May I ask you, Commissioner, would you be willing to lead ..


CHAIR EARP: .. a group to address this issue.

COMMISSIONER ISHIMARU: Madam Chair, no. No. Because Madam Chair, I see this as frankly, one of your fundamental responsibilities and the abdication of that I think is unfortunate. So I guess, we're going to have to bring this up when retirement resolutions come forward, we'll have to bring them up at meetings and talk about it.

CHAIR EARP: Well, we'll do what we normally do when they come forward, we'll vote on them, and if someone doesn't want to vote on them, then they won't. That's the procedure.

COMMISSIONER ISHIMARU: We will follow regular order then. All right.

CHAIR EARP: Is there further discussion on this issue?

COMMISSIONER GRIFFIN: For some reason, I was under some impression because of discussions we had that we were going to, at this meeting, discuss maybe something that was proposed. And so I'm kind of surprised that we're not doing that. I thought there were people working on it from your office as well as others.

CHAIR EARP: There have been several attempts to find out from Commissioner Ishimaru exactly what it is he would propose. We haven't received anything.

And I would just articulate again, it is not the responsibility of the Office of the Chair to change 30 years of Commission policy. The only matter before us today is the vote on the resolution honoring Ms. Kendrick. That's it.

Beyond that, again, I am happy, Commissioner Griffin, if you would like to lead a group or if Commissioner Ishimaru would like to lead a group ..

COMMISSIONER ISHIMARU: Madam Chair, I do not see why ..

CHAIR EARP: .. I’m happy to entertain it.

COMMISSIONER ISHIMARU: It is mind boggling to me why this, which is quintessentially a staff issue, cannot be resolved by people in your office to say, here is our policy of how we will try to be consistent on honoring employees so that we will do it in a fair and consistent basis.

I don't see how this morphs into somehow, a Commission issue. This is not a policy issue; this is an issue of how we honor employees. And the fact that you won't grapple with this and have your staff develop something that is coherent is beyond me.

CHAIR EARP: Like you said, it's not rocket science. Are there other issues, comments on Ms. Kendrick's resolution?

(No answer.)

CHAIR EARP: Hearing none, is there a motion to approve the resolution honoring Ethel Kendrick on her retirement?


CHAIR EARP: Do I hear a second?


CHAIR EARP: Thank you. Any further discussion?

(No answer.)

CHAIR EARP: Hearing none, all in favor, please signify by saying aye.

ALL: Aye.

CHAIR EARP: Opposed?

(No answer.)

CHAIR EARP: The item is approved 5.0; it passes. Thank you very much.

I want to thank everyone for joining us today. We appreciate you being here. There being no further business, do I hear a motion to adjourn the meeting?


CHAIR EARP: All in favor?

(Chorus of ayes.)

COMMISSIONER ISHIMARU: You need a second, Madam Chair.

CHAIR EARP: Is there a second to adjourn?


CHAIR EARP: Thank you. All in favor.

ALL: Aye.

CHAIR EARP: The ayes have it. Thank you.

(Whereupon, the foregoing matter went off the record, 4:00 p.m.)

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