U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

 

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STRATEGIC ENFORCEMENT PLAN

LISTENING SESSION II:

IDENTIFYING VULNERABLE WORKERS AND REACHING UNDERSERVED COMMUNITIES

 

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           MONDAY, SEPTEMBER 12, 2022

 

                VIRTUAL HEARING

 

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PRESENT:

 

CHARLOTTE A. BURROWS   Chair

JOCELYN SAMUELS        Vice Chair

JANET DHILLON     Commissioner

KEITH E. SONDERLING    Commissioner

ANDREA R. LUCAS        Commissioner

 

 

 

            This transcript was produced from audio provided by the Equal Employment Opportunity Commission.

 

 

WITNESSES:

 

MARISA DIAZ, Legal Aid at Work

BLANCA RODRIGUEZ, Columbia Legal Services

MARISA LUNDIN, California Rural Legal Assistance, Inc.

MARIA LOPEZ, California Rural Legal Assistance, Inc.

CHANCHANIT (CHANCEE) MARTORELL, Thai Community Development Center (Thai CDC)

MONICA GUIZAR, Service Employees International Union (SEIU)

VIDHI BAMZAI, Southern Poverty Law Center (SPLC)

IAN ANDERSON, Transgender Law Center

JULIE KEGLEY, Georgia Advocacy Office

 

 

 

                      

 

 

TABLE OF CONTENTS

 

                                        

Introduction and Welcome 

Opening Remarks              

Witness Panel 1                

Commissioner Questions  

Witness Panel 2                

Commissioner Questions  

Conclusion/Thank You      

             P-R-O-C-E-E-D-I-N-G-S

                               (10:00 a.m.)

CHAIR BURROWS:  Hello and welcome to today's public listening session of the U.S. Equal Employment Opportunity Commission, identifying vulnerable workers and reaching underserved communities.

The meeting will now come to order.  This meeting is being held in accordance with the requirements of the Sunshine Act, and is being conducted virtually via Zoom.

The public has been invited to register and listen in to the meeting.  Real time captioning and ASL is available.

I'd like to extend a very warm welcome to our invited panelists.  We're so grateful for your willingness to join us today and to share your experiences and your expertise with this commission.

I'd like to thank our EEOC staff, who worked tirelessly over the past several weeks to prepare for today's listening session.  And I'd also like to thank the vice chair, my fellow commissioners, and their staffs for their support and contributions.

Finally, thank you to everyone who is joining us virtually from across the nation for this critical conversation, focusing on workers who are vulnerable to discrimination in the workplace.

Before we continue, I will briefly explain the procedures for today's listening session.  The listening session is being recorded and a verbatim transcript will be made of today's proceedings.

The recording and the transcript, as well as the list of our witnesses will be posted on the EEOC's website after the listening session.  As the presiding officer, I am responsible for regulating the course of this meeting.

Today's session will consist of two panels of witnesses.  For each panel, I will introduce the witness who will have five minutes for their remarks, followed by questions from members of this commission.

We'll then take a 15 minute break after the first panel.  Following the break, we'll hear from our second panel of witnesses.  While this listening session is open to the public, remarks and questions will not be taken from the audience.

And this virtual meeting is the second in a series of listening sessions, inviting public input into the agency's strategic enforcement plan for fiscal years 2022 through 2026.

The first listening session was held on August 22nd and focused on racial and economic justice.  I'm looking forward to hearing input from today's panelists about our strategic priority to protect vulnerable workers from discrimination.

These sessions provide critical information for the commission as it reassesses how it allocates its resources and our enforcement efforts.

We recognize, however, that we are not able to hear from everyone directly who might wish to comment on these topics or, frankly, on other topics relevant to our work.  So we also have an email box to receive written comments, which can be found at S-E-P 2022 at EEOC dot gov.  That's sep2022@eeoc.gov.

This is an enormously important time for civil rights.  COVID 19 has exposed and really intensified existing inequalities in our society.  The pandemic's health and economic fallout disproportionately impacted people of color, women, immigrants, older workers, individuals with disabilities, and caregivers to name a few.

As we emerge from the pandemic and return to the new and somewhat different normal, it's critical that we understand the issues that workers who are vulnerable to discrimination are facing.

Since at least 2012, the commission has identified vulnerable workers as an enforcement priority.  However, we know that over time, the needs of these workers may have changed.

Therefore, we are interested in your input on defining who should be considered a vulnerable worker for purposes of EEOC's work, and the issues that are most prevalent for those communities.

We're also interested in your ideas as to how the EEOC can better focus its outreach and our resources to help these communities.  This discussion will assist us in shaping our SEP in the coming years and ensure that our work is informed by experts who best understand the issues affecting vulnerable workers.

I'd now like to invite my fellow commissioners to make opening statements, beginning with Vice Chair Samuels.

VICE CHAIR SAMUELS:  Thank you so much, Chair Burrows.  I'm so grateful to our witnesses today for sharing their insights and on the ground experiences as EEOC develops and updates our strategic enforcement priorities for the next five years.

I offer my deep thanks to Chair Burrows, to commission staff for organizing this meeting, to my fellow commissioners for their commitment to this process, to our witnesses for their testimony, and to all of you for joining us today.

As you know, this listening session is focused on vulnerable workers, including those workers, many of them immigrants or people of color, who picked the produce that ends up on our tables, and processed the chicken and meat that we enjoy with our families.

Who work at all hours in the lowest paying service and custodial jobs, who have been on the front lines providing essential services during the pandemic.  And who all too often make below a living wage providing crucial care for our loved ones.

Vulnerable workers also include individuals with intellectual and other disabilities, who want to work and contribute their skills to our society, but who have difficulty being hired and when hired, can be subject to discrimination and treatment that makes it difficult to remain employed.

And of course, vulnerable workers also include transgender and other gender nonconforming individuals who are the subject of egregious discrimination in so many sectors, healthcare, education, and employment to name a few.

EEOC has long made the needs of vulnerable workers a strategic priority of the work that we do.  But all too often, we don't hear directly from these workers for various reasons, including fear of retaliation and suspicion of government agencies.  Some do not readily file charges with us.

Some are not even aware of the workplace rights that the EEOC enforces.  Yet they are the workers who often experience the worst workplace violations in our country.

Our witnesses today are tremendous advocates who speak for these workers, and those who are least heard.  Individuals who on their own often lack the resources to reach out to us.

We've previously partnered with many of them and organizations like theirs to file cases on behalf of vulnerable workers, including labor trafficking and discrimination cases on behalf of groups of Thai and Mexican farm workers, case on treatment of a class of individuals with intellectual disabilities in a poultry processing plant, and many others.

These partnerships have been crucial toward addressing the needs of vulnerable workers, and they must continue.  Our witnesses can bring us the voices of vulnerable workers and tell us directly about the employment challenges these workers face in a changing world, affected by the pandemic and evolving labor market forces.

This input is critical to ensure that EEOC is well positioned to address these challenges, and I greatly look forward to this discussion.  Thank you.

CHAIR BURROWS:  Thank you.  Commissioner Dhillon.

COMMISSIONER DHILLON:  Thank you.  I'd also like to thank the witnesses for appearing here today.  I will note at the outset, though, that I do regret that we are not holding this hearing in person like we did with our last listening session, and I look forward to resuming in person listening sessions soon.

The agency is currently working on its new four year strategic enforcement plan.  And at this listening session, I'm looking forward to hearing from the witnesses.  Their suggestions on what should be included in the plan, including areas of emphasis, particular topics for inclusion, and any other ideas that they may have to improve the effectiveness of the agency's enforcement efforts.

As I've said before, I think it's critical that the agency obtain input from a wide range of stakeholders, representing a diverse set of views.  These listening sessions are part of that effort, and I thank the witnesses for their participation.

But not all interested stakeholders have been extended an invitation to appear at one of these listening sessions.  Therefore, I continue to believe that it is essential that the draft strategic enforcement plan be published in the Federal Register for a public comment period, so that the -- so that all interested parties will have an opportunity to weigh in on these important issues.

I look forward to hearing from the witnesses today.

CHAIR BURROWS:  Thank you.  Commissioner Sonderling.

COMMISSIONER SONDERLING:  Thank you.  Today, we meet to discuss the ways the EEOC can prevent workplace discrimination against vulnerable workers and how to better reach underserved communities.

This is an incredibly important group, not just for the EEOC, but for all federal government agencies to protect.  Often, these workers do not have the means, resources, or even the general awareness that there are significant laws that protect them.

As we will hear, these groups of workers need us the most, as often there is no one else to help them.  For these workers, we certainly need a blend of enforcement and outreach to meet our mission.

I am hopeful that our new strategic enforcement plan will incorporate and further develop the vulnerable workers taskforce established in 2020.  Staff of the agency have already put a lot of resources and time into the vulnerable workers taskforce, and it should be highlighted front and center.

The commission owes a great deal of gratitude to those of you in the public who are taking the time to attend this session virtually.  Your presence demonstrates your support of the EEOC as we identify the long- term priorities and activities to conclude in our strategic enforcement plan.

Unfortunately, this listening session is not being held in person, and does not allow for additional testimony, other than those that are preselected in advance.

You know, when I was at the U.S. Department of Labor, we did listening sessions for the overtime rule around the country, and we did not limit who could testify.  A member of the public could show up in person, walk up to the microphone and were given a few minutes to let us know their thoughts.

We did not go back-and-forth with these witnesses willing to testify or ask questions, we just listened.  Thereafter, all comments whether delivered in person or emailed later, were subsequently made available for the entire public to view.

As there are only three listening sessions here that do not allow for the general public to participate outside a private email box, I urge my fellow commissioners to err on the side of transparency to ensure the SEP goes through the Federal Register so the public can comment and everyone can read those comments.

In closing, I look forward to hearing to the testimony today, and I appreciate you being here with us.  Thank you.

CHAIR BURROWS:  Thanks so much.  Commissioner Lucas.  I'm sorry, Commissioner Lucas.  If you could begin again.

COMMISSIONER LUCAS:  Good morning and thank you to all the witnesses, members of the public, and EEOC employees joining the commission for today's listening session.

I'm looking forward to today, to hearing witnesses input on the EEOC's strategic enforcement plan and how we can continue to fulfill our mission of preventing and remedying unlawful employment discrimination, particularly with respect to vulnerable workers.

While I'm pleased that technology has expanded the commissions accessibility to witnesses and members of the public, otherwise that would be unable to participate in the commission's public meetings, I too am disappointed that today's meeting is not in a hybrid format.

It was such a pleasure to be in person in a hybrid setting, a listening session last month, with my fellow commissioners, witnesses, and members of the public at our first SEP listening session in Buffalo, New York.

And I want to acknowledge the privilege that accompanies fully remote work.  I am well aware that many of the members of groups that can be categorized as vulnerable workers, such as workers with actual or functional limited access to technology, whether due to location, monetary, age, literacy, or language barriers.

Agricultural workers, low wage workers, migrant workers, and workers who recently immigrated to our country, and many workers who worked in front line, in essential industries during the pandemic.

That these workers often have not had the privilege of teleworking.  It's important to me that the commission be fully accessible to those workers, and organizations, and advocacy groups that represent such workers in whatever format best increases accessibility.

So I want to reiterate today to the public, our witnesses, vulnerable workers, and their representatives, that I'm available to meet in person to hear additional feedback about the commission’s strategic enforcement plan and other issues concerning the commission.  And I look forward to resuming in person listening sessions in the near future.

Like my colleagues, I also believe that the commission should public the draft strategic enforcement plan in the Federal Register and collect public comments there in order to insure a full diversity of stakeholder viewpoints, both minority and majority viewpoints.

Whatever the format, I look forward to receiving public input on the commission's important work preventing and remedying employment discrimination, particularly on behalf of our country's most vulnerable workers.

I thank you all for participating today and I look forward to hearing your feedback.  Thank you.

CHAIR BURROWS:  Thanks very much.  It's now my pleasure to introduce the speakers on our first panel, in the order that they will be speaking today.  First, Marisa Diaz is a senior staff attorney in Legal Aid at Work at National Origin and Immigrants' Rights Program, or NOIR.

The NOIR program promotes and defends the rights of low wage immigrant workers and other workers who face discrimination based on their national origin.  In this role, Ms. Diaz engages in impact litigation, amicus curiae efforts, community education, and policy work.

Before joining Legal Aid at Work in 2015, she was a fellow at Equal Rights Advocates, and a judicial clerk for the Honorable Michael Daly Hawkins of the U.S. Court of Appeals for the ninth circuit.

Next, Blanca Rodriguez is the deputy director of advocacy at Columbia Legal Services, which advocates for laws that advance social, economic, and racial equity for persons living in poverty in Washington State.

They work with immigrant community groups and unions to transform employment practices that have excluded immigrant workers.  Prior to joining Columbia Legal Services, Ms. Rodriguez worked in the farm worker unit of the Northwest Justice Project, where she represented farm workers in employment discrimination matters, including sexual harassment, in state, federal, and appellate courts.

Marisa Lundin and Marisa Lopez work for California Rural Legal Assistance, a nonprofit law firm founded in 1966, to provide free civil legal services to low income residents of California's rural communities.

Ms. Lundin is the director of CRLA's indigenous program and she serves -- and Ms. Lopez, rather, serves as a staff attorney in that program.  The indigenous program provides legal advocacy and educational outreach, and supports leadership development in California's rural indigenous Mexican and Central American communities.  Welcome.

Next, Chancee Mortorell is the founder and executive director of Thai Community Development Center.  She's an urban planner and community leader, dedicated to Thai immigrant and local communities.

Ms. Martorell oversees projects on human rights advocacy, affordable housing, and healthcare access, among others.  She's worked on several major human rights cases involving over 400 Thai victims of human trafficking, including the 72 victims who were discovered living in slavery conditions in El Monte, California.

Ms. Martorell subsequently cofounded the Coalition to Abolish Slavery and Trafficking.  A pioneer of the anti-trafficking movement, as well as the National Coalition for Asian-Pacific American Community Development.

Welcome, and thank you all again for being here today.  As a reminder, you will each have five minutes for your remarks.  We'll begin with Ms. Diaz.

MS. DIAZ:  Good morning, or good afternoon, Chair Burrows, Vice Chair Samuels, and Commissioners Dhillon, Sonderling, and Lucas.  Thank you for inviting us today to share our perspective during this important listening session.

We at Legal Aid at Work have understood the commission's reference to vulnerable workers to mean the most vulnerable workers, since the great majority of workers in the United States are vulnerable to discrimination in some important respects.

For example, most workers in the United States are not part of a union.  This means that as at will employees, employers can fire most workers in the United States for no reason, or for arbitrary reasons.

This inherent power imbalance creates workplaces that are ripe for discrimination and retaliation.  So how can the commission identify and strategically enforce the rights of the most vulnerable workers in the United States?

Based on our experiences in representing workers, we believe the commission should consider the following factors, at a minimum, as indicators of unusual susceptibility to discrimination in the workplace.

First, immigrant workers of color in particular experience high rates of discrimination and multiple obstacles in enforcing their rights.  For example, immigrant workers are often unaware of their rights, and we have seen firsthand in our cases how employers, unscrupulous employers can take advantage of this fact.

Except for those with graduate degrees, immigrant workers also possess less education, less formal education than U.S. workers, making it even more difficult to navigate the U.S. legal system, and to figure out which labor and enforcement agency might be able to assist them in enforcing their rights.

Immigrants are also overrepresented in low wage jobs, rendering them even more susceptible to unlawful workplace conditions, and making the potential loss of even just one paycheck, even more consequential.

And importantly, the threat of retaliation is heightened for immigrant workers.  If they are fired in retaliation for asserting their rights, undocumented workers do not have access to unemployment insurance, a fact that has come to the forefront, especially during this pandemic.

And even work authorized immigrants sometimes fear accessing this benefit, given misinformation about how it could negatively impact their immigration status.

And on top of this risk of retaliatory termination, immigrant workers also face the very real threat of immigration related retaliation and deportation if they assert their workplace rights.

As the Ninth Circuit in Rivera v. Nibco, and other courts have recognized, this threat chills both documented and undocumented workers rights.  And we, unfortunately, see this type of retaliation come up time and again in the cases that we work on.

Second, workers whose proficiency in English is limited, face greater obstacles in learning about and acting on their workplace rights in a country, and often in a workplace, where English is the language of power.  As I believe will be noted by California Rural Legal Assistance, speakers of indigenous languages from Latin America are especially disadvantaged in this respect.

And third, workers in rural areas across the United States often lack access to legal service providers, while also working in some of the most exploitative industries, such as agriculture.

These individuals also lack consistent access to Internet and easy access to information online.  This means that even if they want to assert their workplace rights, there is often no one or few people who could come to their assistance.

Although it would be a case-by-case determination, we would therefore recommend that the presence of two or more of the above main three factors that I just discussed, in a given case, would weigh heavily in favor of it being deemed a priority case under the commission's forthcoming strategic enforcement plan.

That is because the confluence of these factors indicate a substantial vulnerability to workplace discrimination, and a special need for the commission's strategic enforcement power.

For these same reasons, we further recommend that the commission consider all cases involving low wage immigrant workers to be within its targeted priorities in its forthcoming strategic enforcement plan.

In prioritizing the strategic enforcement of low wage immigrant workers' rights, we would also urge the commission to make speedy process on improving and creating new processes to support immigrant workers' efforts in obtaining immigration relief, so that they can fully participate in the commission's investigation, and the commission can fully enforce the nation's workplace laws to the benefit of all workers.

Thank you again for this opportunity, and I welcome any questions that the commission might have.

CHAIR BURROWS:  Thank you very much.  I appreciate it.  Okay.  So now, we can go, I believe we have next, Ms. Rodriguez, welcome.  And also, yes, Ms. Rodriguez, I think you're up next.

MS. RODRIGUEZ:  Thank you so much, Chair Burrows.  It is a pleasure to be with all of you today.  I -- at Columbia Legal Services, we work with two special populations, those that are incarcerated and immigrants, and in particular farm workers.

As we all know, those two populations were the hardest hit during the pandemic, and continue to be vulnerable.  I grew up in the Yakima Valley, working in the fields with my parents and siblings.  And I experienced firsthand the discrimination and the injustice that is faced by many farm workers today.

Not much has changed.  For the last 25 years, I have worked with immigrants and farm workers in the Yakima Valley, and I would like to thank the EEOC for all its great work, and in particular for the work that it has done to combat sexual harassment in the agricultural industry.

In Washington State, we continue to see immigrant farm workers experience sexual harassment, gender, and other types of discrimination.  99 percent of farm workers in Washington State are of Mexican or Central American descent.

Culture, linguistic, geographical isolation, legal status, and poverty continue to be the reasons why it is very difficult for immigrant farm workers to report sexual harassment and other discrimination.

The work that the EEOC has done over the years has helped improve the landscape.  When I first started doing sexual harassment cases, most agricultural employers did not have sexual harassment policies, or provide any kind of training.

Today, more and more growers are enacting policies and providing training, but often these policies and trainings are not consistent with the promising practices for preventing sexual harassment that came out of the EEOC's select task force on the study of harassment in the workplace.

One of the trends we are seeing is that growers continue to contract vendors like the Washington Farm Labor Contractor Association to do training and handle sexual harassment complaints.  And what they do is not adequate.  They provide very little training, and workers are given a phone number to call, and not much happens after they call.

And in fact, the association has been sued for sexual harassment.  We are seeing more of these types of players that are only getting in the way of workers being able to report sexual harassment.

Another trend we are seeing is that more and more farm workers, especially women, are being pushed out of agricultural jobs, and this is due to the growth of the U.S. Federal H-2A program by growers who are using it much more than they did when I first started working 25 years ago.

For those of you who are not familiar, the H-2A program allows growers to bring in foreign workers when there's not sufficient local workers to do the job.  And it's meant to be a temporary program to fill these jobs temporarily.

However, there is little oversight of the program, and there is a lot of exploitation.  A good example of how this program interacts with H-2A, is the case of Ostrom Mushrooms, a year-round employer located in the Yakima Valley.

They were recently sued by the Washington State Attorney General's Office for discrimination and retaliation.  When the company first came to the Yakima Valley, it hired many farm worker women.  One of the women reported that she planned to retire from the company because it was good pay and year-round work.

However, after the company started bringing in H-2A workers, she was terminated.  The lawsuit alleges that from 2021 of January to May 2022, the company hired over -- fired over 140 of its U.S. mushroom pickers, most of them women.

Many of them had been working for the company for quite some time, and at that same period had fired 65 H-2A workers, most of them men, except for two women.  In addition, the company posted on Facebook when -- after it fired all these women that it was looking for men, only men, to come work at their farm.

This, unfortunately, is happening throughout the agricultural industry and more women are losing out on jobs, which is making it more difficult for them to earn a living to support their families.

Finally, the EEOC should consider persons who have been formerly incarcerated, whether as adults or children, as a vulnerable population for strategic enforcement.  The system of mass incarceration disproportionately over criminalizes persons of color, and access to employment reduces the likelihood of recidivism.

We know that it is harder for formerly incarcerated to get and keep jobs.  In addition, in Washington State, despite clear protections under state law for people whose juvenile records were sealed by court order, through our investigations we have uncovered that these state agencies are still producing this information to perspective employers.

And that information has directly prevented young adults who committed crimes as children, from getting employment, particularly in the growing gig economy.  This vulnerable population, as well as farm workers, should be part of the EEOC's strategic enforcement plan.  Thank you for your time.

CHAIR BURROWS:  Thank you.  And we'll go next to Ms. Lundin and Ms. Lopez.  You're recognized for five minutes.

MS. LOPEZ:  Thank you and good morning.  I am Ms. Lopez with the indigenous program at CRLA.  Just to share a little bit more about who indigenous people are, indigenous Latin American communities are the original inhabitants of Latin America who are thriving civilizations for thousands of years before the arrival of Spanish speaking Europeans.

The largest population of modern-day indigenous peoples are found in Mexico, Guatemala, Peru, and Bolivia.  The 2010 indigenous farm workers study estimated 25 to 35 percent of farm workers in California are indigenous Mexicans.

Advocates not believe that this number is closer to 50 percent.  Indigenous communities have settled across the U.S., including in California, Florida, Oregon, Washington, Texas, New York, Virginia, North Carolina, Mississippi, and many other states.

There are many, many different indigenous languages.  With any language, there are many variations.  Not all variations are understandable to each other and not many people who only speak an indigenous language read or write in their language.

Many people who speak indigenous languages need an interpreter for either English or Spanish, and Oto and Bajo won't guarantee language match for Mixteco.  And now I'll be handing it over to my colleague who has some additional points.

MS. LUNDIN:  Thank you, Maria.  Good morning.  My name is Marisa Lundin.  I am the legal director of the indigenous program at CRLA.  I've been with CRLA for about ten years, and the last six of those years, I have been exclusively focusing on the legal needs of low income Latin American indigenous workers and residents of California.

As my colleague noted, indigenous farm workers make up about half of the current workforce in California, among farm workers.  And for the remainder of the presentation, I will use the word indigenous to refer to indigenous Latin Americans, and not Native Americans.

Our program is statewide.  We conduct direct services mostly out of Kern County, California, but we also take on impact cases and projects that serve statewide and nationwide interests.

In my time, I would like to make three points.  Number one, we see higher rates of violence, discrimination, and other forms of mistreatment against indigenous workers, and I suspect this is true for any worker who speaks or signs a non-dominant language.

Indigenous workers are targeted because they are linguistically and culturally isolated.  I have heard multiple times among the cases that I've taken, representing workers, that a foreman, or a supervisor, or a manager has said some variation of the phrase you're Mixteco, you're an Indian, who's going to believe you, who are you going to tell.

These bad actors are very aware that indigenous workers have limited access to agencies who provide relief for workers.  For the reasons highlighted by my fellow panelists, Marisa Diaz, indigenous workers are very fearful of retaliation, which is another disincentive to reporting.

My second point is that if an indigenous worker has a language barrier, it is almost assured that they will have a literacy and technology barrier.  Again, this is something that we see common in other languages of lesser diffusion as well, among low wage workers.

So a lot of this can be related to lack of access to formal education in the home country, especially true for someone who speaks a language that is the linguistic minority in their home country.

That means that translated, which means written materials, are unlikely to be effective outreach tools and unlikely to relay critical information about a worker's rights, or mechanisms for reporting.

Online submissions of claims are a very powerful tool and provide access for many workers, however, it is not an effective form of access for many low wage workers.

One good piece of news is that although outreach to indigenous communities can be challenging due to language, technology, and literacy barriers, good news travels quickly.  That means that if a worker has a positive experience reporting to an agency where they've been provided a professional, qualified, trained interpreter, and they've been treated with dignity and respect, they're going to share that experience with other workers, and that will travel very quickly throughout communities.

Many linguistically isolated communities in the U.S. are very insular as a result of that isolation.  It also means that bad experiences travel quickly.  So if somebody is not provided with the right interpreter or they're treated rudely, or forced to go forward in their claim in Spanish, or less likely in English, then that's going to travel as well and people will know they cannot trust your agency.

My third point is that many efforts to provide language access to indigenous language speakers fail.  Agencies, many of the agencies I'm familiar with frequently rely on multilingual employees and telephonic interpreter providers as the extent of their language planning efforts.

In reality, it takes a very big team, a deep bench of people to provide effective language planning.  In my organization of 150 people, we have two full time staff providing language access for internal needs serving clients.  And it's not enough.  They're very busy.

For an agency the size of the EEOC, it's going to take a whole unit to do language planning effectively, and to think about how to set up spaces over Zoom, working with somebody who might not be proficient in working technology.

So a quick note about language services, as my final point, translation refers to written materials.  Interpreting refers to spoken or sign languages.  These are serious professions that require a great deal of skill, training, and knowledge of a complex body of ethics.

This isn't something that you can do if you're merely bilingual.  It really requires something additional to that.  And in our experience, it's not just one telephonic interpreter provider who can meet your language needs, it really takes a whole team of independent contractors, bilingual staff, and multiple different agencies.  Thank you.

CHAIR BURROWS:  Thank you very much.  And now, we'll go to Ms. Martorell.  You are recognized for five minutes.

COURT REPORTER:  Ms. Martorell, you may begin.

MS. MARTORELL:  Thank you EEOC commissioners for this opportunity to speak to you concerning the vulnerability of workers, an issue I care very deeply about as a formerly undocumented immigrant myself, whose parents were low wage workers.

My name is Chancee Martorell, again, and I am the executive director of the Thai Community Development Center, which I founded 28 years ago to address the social, economic, and health disparities faced by low income immigrants, including the undocumented, the housing and food insecure, seniors, the limited English proficient, and victims of labor trafficking.

In the Thai and other Asian Pacific Islander ethnic immigrant communities, there exists a low wage sector of the economy, commonly known as the underground economy, where undocumented workers and victims of labor trafficking, work in the garment, restaurant, massage, agricultural, construction, home healthcare, domestic service, and childcare industries, where they are subjected to the most egregious forms of exploitation dispelling the model minority myth.

Undocumented workers are often paid sub-minimal wage, and are denied overtime compensation.  They are also exposed to occupational hazards, and denied their rights to labor protection, afforded by wage and hour laws, and Title 7 of the Civil Rights Act, prohibiting discrimination on the basis of race, color, religion, gender, pregnancy, disability, or national origin.

Oftentimes, workers are exploited by their own co-ethnic employers, who also discriminate on the basis of gender, pregnancy, disability, and age.

Kinship ties between workers and their co-ethnic employees commonly undermine the worker's ability to report their abuses or to express their grievances, as the obligation they feel toward their employers is strengthened by their dependence on employers who oftentimes house and feed their workers while they are undocumented.

Vulnerable workers are also fearful of retaliation and being blacklisted in their community by employers for coming forth to report their abuses.

Among labor trafficking victims, the circumstances are far more heinous, as workers are stripped of their freedom, held in virtual slavery, or in a form of debt peonage, are physically and or psychologically coerced to work endlessly for little to no pay, and threatened with violence until they either escape or are freed by authorities who partner with service providers like Thai CDC.

Community based organizations like Thai CDC are in the trenches, have the pulse of the community, and have become the trusted voice in their communities to vulnerable workers.

So vulnerable workers will turn to them for assistance first before going to government authorities.  Vulnerable workers are also fearful of going to governmental authorities and agencies for help, especially if they are undocumented, believing that they will be in trouble with the law and summarily deported.

They would rather remain below the radar and undetected, and among vulnerable Thai workers, they would rather endure the exploitation, considering that as their fate in life as a result of karmic retribution for misdeeds they committed in their past life

The efforts of Thai CDC and our partners in the API community, include conducting in language outreach, on the ground, at various community sites, such as churches, temples, and most frequented business and shops to reach vulnerable workers.

Talking to them in their language, and providing them in language educational materials.  And also providing linguistically and culturally appropriate specialized services to immigrant workers and trafficked victims as their language and cultural barriers make them completely unaware of their rights to redress and restitution.

These specialized services include direct social services, case management, legal services, mental health services, and immigration services.  We also conduct know your rights workshops in language, to help workers understand their rights in the workplace, and empower them to assert these rights.

We have been successful in partnering with multiple governmental agencies to a chief justice for exploited workers and victims of labor trafficking.  Nearly three decades of collaboration with the EEOC has led to multi-million dollar settlements on behalf of hundreds of trafficked Thai welders and farm workers, using the Title 7 Civil Rights Act, prohibiting discrimination based on your race and national origin.

As these vulnerable workers in underserved communities are highly marginalized, invisible, and isolated, and their language and culture barriers prevent them from accessing critical government resources, and from understanding and exercising their rights.

It is extremely critical that EEOC partners with community based organizations to conduct in language outreach, workshops, and presentations in the community, to create in language educational materials about the EEOC, and to work together with CBO's, with claimants through the arduous process of obtaining redress and restitution.

These partnerships between CBO's and EEOC are crucial if we are to address the plight of vulnerable workers.  Otherwise, they will continue to remain highly under served.  Thank you for your time.

CHAIR BURROWS:  Thank you.  And to all of our panelists, thank you very much.  We'll now proceed with questions from members of the commission.  Each commissioner will have ten minutes for questions and I'll begin with the vice chair.

VICE CHAIR SAMUELS:  Well, thank you so much, Chair Burrows.  And thank you so much to our witnesses for the powerful testimony that you've delivered and for the work that you do to support some of the most vulnerable members of society.

We are all grateful for the efforts that you make and look forward to partnering with you in the years ahead.  I'll also say a special hello to Ms. Martorell, who I had the privilege of meeting when I was in Los Angeles.  It's very nice to see you again.

My first question, actually, is for Ms. Diaz.  And you know, again, thank you for all your work.  My first question to you is, you know, in your experience, if your organization is unable to take a case, how difficult is it for victims of discrimination to find private attorneys, for example, those who work on contingency, to be able to represent them?

MS. DIAZ:  Thank you for your question, Vice Chair.  Unfortunately, it is very difficult when we can't take on a case, and it's pretty difficult to find a private attorney who is able to.

And sometimes that is related to the fact that, you know, many cases on behalf of low wage workers, especially if it is an individual case, are not necessarily high damages cases from the perspective of kind of the overall outcome of a case.

And so for us, a nonprofit that is not any, you know, any factor that we would ever consider.  But it is a factor that some private attorneys to have to consider given their business model.

And so it is, unfortunately, difficult to place cases sometimes, even when they're very meritorious cases due to that factor, and other challenges related to everyone's, you know, capacity to take on new cases.

VICE CHAIR SAMUELS:  Okay.  Thanks.  That's helpful to know.  Let me ask you and, Ms. Martorell, you may also have something to add on this because you mentioned it in your testimony.

We know that a significant percentage of these vulnerable workers are undocumented, and may be fearful of approaching government agencies.  As I think you both are aware, under our laws, immigration status does not affect your ability to be protected from discrimination.

How can EEOC reassure, particularly undocumented workers, that we are here to help, and that they need not feel apprehensive about coming to us to press their claims?

MS. MARTORELL:  That's why it's critical to work in partnership with community based organizations like the Thai Community Development Center to work hand-in-hand and outreach to these workers, and to explain to them that they're coming forward, despite being undocumented, will really not threaten to -- their ability to continue living here or even risk them being deported.

We have done many of these educational workshops and meetings with community members.  As long as a CBO is there, side-by-side with a governmental agency, like the U.S. Department of Labor and EEOC, where their status really does not matter because it's about enforcing the laws and protecting their rights, regardless of their status.

If you have a CBO side-by-side with you because we have become the trusted voice, they will then earn that -- you will earn that trust from them and then they will find it more credible and have more confidence and understand that their status would not matter should they come forward.

But it really takes working hand-in-hand, side-by-side, with the CBO's.

MS. DIAZ:  Yes.  And I would echo that and also add two more points, and one is that, you know, the more outreach the EEOC can do directly in communities, I think also the better in that oftentimes workers don't fully understand the distinction between the EEOC, versus, for example, the Department of Homeland Security.

For many folks, it's just all the federal government.  And so that distinction, I think the more clear the EEOC can be in its outreach about its role, its independent role in enforcing workplace rights, the better for workers' understanding.

And then also, given the real risk of retaliation for workers coming forward, which can happen at any state of a case, we would also, as I mentioned in my comments, we also believe that the EEOC's efforts in supporting workers in their applications for immigration relief to the Department of Homeland Security, if those are related to the workplace investigation, that that support is another way that the EEOC can build trust with immigrant workers and also protect them during the process to ensure that the agency can conduct its investigation and that, as Marisa Lundin emphasized as well, you know, many workers are afraid of even stepping forward.

And so if they do learn that one of their colleagues was able to step forward and is protected during that investigation, that is also helpful to the agency's enforcement efforts, and to workers' rights on the ground.

VICE CHAIR SAMUELS:  Thank you, both.  That's very helpful.

MS. MARTORELL:  I could -- I would also like to add that if they are considered a victim of crime, they may be eligible for U visas, or T visas, and EEOC can actually help certify them as victims of crime.

And then our attorneys can start the process of applying for this kind of immigration status to provide the continued presence.  And so that then will help them understand that they will be protected, and yes, they would likely come forward and participate in any kind of investigation if there's that remedy, immigration remedy available.

VICE CHAIR SAMUELS:  Thank you, both.  That's really helpful.  At the risk of posing challenges for our colleagues in the IT universe, I have a question for anyone who would like to answer it.

And you know, as a preface, I'll note one of the benefits of holding this hearing remotely is that all of you have been able to talk to us from the West Coast, and that is obviously a real value in extending our reach and enabling us to hear from people who can't necessarily travel to be in D.C.

But I guess I'm interested in your views about particularly for immigrant workers and other vulnerable communities, and the jobs they hold, and their family commitments, are virtual services beneficial in the sense that they make it easier to access if you have access to internet or can go to a library to use a computer?

Or are the situations that they face so emotionally devastating that an in-person presence is something that is really necessary to enable people to feel comfortable discussing their claims?

And you know, the answer may be both are important, but I'd be interested in the views of any of you who might want to speak to this.

MS. DIAZ:  Thank you, I would love to take a stab at that.  I think that your last comment is right.  I think that when you think about access, it's always about and, and never about or.

I think that prioritizing as many forms of access as possible is always the right solution.  There are going to be workers who are most comfortable in an online setting, and there are going to be workers who are probably looking at a computer screen for the first time in their lives when they are sitting down for their interview.

And that in itself can be distracting.  It can be a poor practice as far as trauma informed advocacy goes, or it just might be logistically impossible.

So for the clients that we directly represent, if they have online hearing, which is very common for a lot of the different agencies that we are doing advocacy before, we know that we have to be there in person to set everything up, or there's just no chance.

Answering one of your earlier questions about to the private bar, an additional point I would make about that is that very few private attorneys have the capacity or maybe profit motivation to provide that in-depth level of support to get a client set up with the technology that they need.

And also, there's just an issue of language compatibility.  In my experience, overwhelmingly, members of the private bar are unwilling to work with professional interpreters.  So if they don't, they themselves speak a language or have somebody on staff that speaks that language, they will not serve that client.

So that all contributes, I think, to the access question that you raised.

VICE CHAIR SAMUELS:  Thank you for that.  And I see Ms. Rodriguez has her hand up and I know that I am sadly out of time after that.  So obviously, there is much more to discuss.  I look forward to our continued conversations, but if it's all right with Chair Burrows, if we can give Ms. Rodriguez a chance to reply.

CHAIR BURROWS:  Yes, please.

MS. RODRIGUEZ:  Thank you so much.  I appreciate that.  You know, during the pandemic, you know, we were all working from home, right.  We had the luxury of -- legal services attorneys, most of us, to work from home.  And so we were working with community, trying to connect them up to Zoom and other technology.

But it has been a challenge, definitely.  And so it's not automatic.  It really does take working with partners to teach folks the technology, even how to use it, how to set it up.

And it's been a challenge.  So I do agree that multiple forms of avenues for people to access the EEOC is great, but particularly for immigrant farm workers, it just takes a lot more to get people to use the technology.

And you know, in terms of private attorneys, the other thing for us in Washington State is that we actually don't have a lot of employment attorneys, particularly in Eastern Washington.  And so that is another barrier that, you know, you -- most folks would have to travel over to the east side to be able to take on cases.

And that adds another expense.  So in addition to what other advocates have stated, I would add that, that it's -- they're just not accessible, even.

VICE CHAIR SAMUELS:  Well, thank you all so very much.  I appreciate it.

CHAIR BURROWS:  Thank you.  And we'll now go to Commissioner Dhillon.  You are recognized for ten minutes.

COMMISSIONER DHILLON:  Thank you.  And again, thanks to all of the witnesses who are here today, and I didn't realize until the Vice Chair mentioned that you are all on the West Coast, and it feels like we -- the commissioners missed the opportunity to travel to the West Coast.  So I regret that.

I'd like to start, I guess, with Ms. Martorell.  Thank you.  You know, I read a lot about the work that your organization has done over the years.  I used to live in Los Angeles, and of course, was aware of it then.

Drawing upon the work that your organization has done in East Hollywood, the establishment of Thai Town, the business community that now exists there, can you share with us your thoughts on how the EEOC could effectively work with businesses in Thai Town, and small businesses in general, to raise awareness about the laws that the EEOC enforces, and to provide compliance assistance to businesses that may not have the benefit of, you know, large HR departments and you know, lawyers on speed dial?

MS. MARTORELL:  Oh, absolutely.  We are actually part of the Asian Pacific Islander small business program that we cofounded back in 1994, '95.  And that includes the other Asian ethnic immigrant communities as well, and of course the Thai community included.

We have a small business program and business counselor who actually conducts entrepreneurship training, program workshops, and classes, and provides one-on-one business counseling and technical assistance.

And also does these workshops where they do invite various representatives from different governmental agencies to come to speak to the business owners, or the entrepreneurs.

In these classes, we also have our business counselor there interpreting, and these representatives come and present from Department of Labor on wage and hour laws.  We've had EEOC presenting as well, on basically discrimination, sexual harassment, what have you, Title 7 laws.

And also, we've had Department of Public Health, for example, come to explain the health permitting process, et cetera.  So yes, we absolutely done that with EEOC, and we want to continue doing that because that is very important.

We also serve the Thai business community.  We have been serving them now for 28 plus years, in order to make them sustainable and viable as a business, so that they can also afford to be socially responsible to their workers.

And it's very important being that they are small businesses, primarily immigrant owned, with language and culture barriers, they absolutely will not have an HR department will absolutely not know what discrimination laws are.

And it's very important that we work together and have EEOC out there meeting with the small businesses through our API small business program to explain compliance and we have done that also with the Thai Chamber of Commerce as well, where EEOC did present to the Thai Chamber of Commerce.

So yes, very, very good question and I look forward to continuing to work in collaboration with EEOC to reach our small business sector.

COMMISSIONER DHILLON:  Well, that's very good to hear.  I'm delighted that the EEOC has been working effectively with your organization, other organizations and I definitely encourage that kind of collaboration to continue because of course, if we can prevent discrimination in the workforce, that's a big victory.

So that's very good news.  Ms. Lundin, so I was very interested in your comments about the role that literacy plays with the population that you serve.  And that's actually a strong interest of mine.

And the vulnerable workers taskforce, my colleague, Commissioner Sonderling mentioned, that was one of the areas that they studied and they found that really the issue of literacy cuts across all categories of vulnerable workers.

And of course, if someone is not literate in, you know, any language or in primary languages, not only do they have difficulty finding appropriate employment, but they have difficulty, you know, reading those polices that the lawyer spent so much time crafting.

Reading their paycheck or their wage statement to ensure that they're being paid fairly, all these kinds of things.

MS. LUNDIN:  Yes.

COMMISSIONER DHILLON:  It's such a barrier, and so I hope -- I wanted you to expound upon how you see the role of literacy playing into the work that you do, and what it is the EEOC can do to be more effective to reach people, that I think are probably among the isolated in our society because of the lack of literacy.

MS. LUNDIN:  Thank you so much.  Yes, I think those are excellent points.  You know, one in seven adults in the U.S. are not literate, and that cuts across languages spoken or signed.  There are members of the deaf and hard of hearing community who are not literate.

So I think, you know, step one is just challenging assumptions about literacy, which it sounds like the commission is already doing, and understanding that it impacts workers across all sectors.

I think step two is looking for partner relationships with trusted organizations who have ties with communities with low literacy, and looking at creating videos, you know, we have a lot of people in indigenous communities may not be literate, but are on Facebook, and scroll videos, and so if we put out outreach materials in language, you know, it really travels very widely and gets a high number of views because then people do share it and promote that -- those materials.

I think providing workers with an option to call back in if they've received any written correspondence, and to have an EEO staff member read the written material aloud through the use of an interpreter, would also be a really effective way of making sure that anything that has been sent to the worker in writing, also has an opportunity to be said aloud.

Or again, for sign language users, to have an option to sign the material through a video call.  So again, and this would benefit, I think, so many workers, just like all access considerations, anytime you open up a door for one person, you realize that actually a lot of people are going to walk through that door, not just the people that you are thinking about, primarily.

COMMISSIONER DHILLON:  That's very interesting idea about the idea of having the ability for people to call in and have the materials read to them.  That's a very good idea.

And in terms of responding to your point about videos, and I'll leave it to my colleague, Mr. Sonderling, but I know that that was an initiative he worked on when he was at the Department of Labor in the wage and hour division of ways to do outreach more effectively to reach populations that may not necessarily be literate.

And of course, you know, this agency, we're a bunch of lawyers, we have lots of words on our website, there's lots of words, but I think that you raised some very good points here today about how we could expand our outreach and reach people, I think, that need us, by rethinking some of the ways that we actually do business.

MS. LUNDIN:  And one additional point on that that I've learned is short videos, because people have limited internet bandwidth, time, so very, you know, multiple short videos are better than one long comprehensive.

And I know we are lawyers so we want to get everything in there that we could possibly ever thing of but --

COMMISSIONER DHILLON:  Right.

MS. LUNDIN:  Thank you.

COMMISSIONER DHILLON:  That's actually a very good point, and also easier to share too, the shorter videos.  So that's an excellent point.

During the pandemic, and particularly during the early days, Ms. Lundin, during the early days of the pandemic, how were you interacting with your clients and with the people that you were trying to reach?  What were the challenges that the pandemic posed, in addition to everything else.

MS. LUNDIN:  You know --

COMMISSIONER DHILLON:  What were the main challenges?

MS. LUNDIN:  I think that we are a little bit unique in that I work with indigenous -- my coworkers are from indigenous Latin American communities.  And one coworker in particular, who's been working in the office for over 20 years, has really tight, longstanding relationships with the community.

So to be honest, it didn't affect us too much because he would just get calls on his cell phone if somebody had an issue come up, and that persisted.  And so you know, we were creative and meeting people outside to get signed materials.

I think some of that posed the greatest difficulties but I think the takeaway is just that really entrenched, strong community relationships withstood the challenges presented by the pandemic.

And in some ways, I think that the communities we served were less impacted by it because I think they were already used to finding us through that personal connection and not through an online search, not through dropping by the office.

But in person contact, I think generally speaking, cannot be overstated enough.  I know that when our State Unemployment offices shut their physical locations in a lot of rural communities, it had enormous consequences for people who were used to going in to an office to have their issue dealt with.

COMMISSIONER DHILLON:  And are you offices open now?

MS. LUNDIN:  We are.  Not fully open in the same capacity we were before the pandemic, so we're on limited staffing, but we are open.

COMMISSIONER DHILLON:  And you're meeting with your clients in your offices?

MS. LUNDIN:  Yes.

COMMISSIONER DHILLON:  All right.  Well, I think my time is up.  Thank you.

CHAIR BURROWS:  Thank you very much.  And now, we'll go to Commissioner Sonderling.  You're recognized for ten minutes.

COMMISSIONER SONDERLING:  Thank you very much.  I want to start with Ms. Diaz, if we can bring her up.  Hello.

MS. DIAZ:  Hello.

COMMISSIONER SONDERLING:  So thank you for your testimony.  I want to flush out this concept a little bit related to the EEOC when we're talking about vulnerable workers, defining vulnerable workers, defining a term we've heard very often here, of a low wage workers and low wage workers being subject to discrimination.

It was the point, I think, we're trying to get to here.  And you know, the term low wage workers is wide ranging, and the term low wage workers and vulnerable workers for that matter, are not protected classes under the law.

And from our position here, we can only, you know, enforce related to specific protected classes.  So it's very easy to get lost, whether it's here or congressional testimony, or anywhere else when we're talking about this concept of low wage workers being treated differently.

But when you look at low wage workers in various industries, the actual breakdown of what their protected characteristics is, is wide ranging.  So you could have one -- low wage workers in one state, you know, be predominantly of the class there that has the -- that's not necessarily in a historically protected class, but they're still low wage workers, versus being somewhere else.

So this term of low wage workers is much easier when you're talking about the Department of Labor, specifically, using that metric.  Because when I was in the wage and hour division, it was very easy for us to do targeted investigations for low wage workers, because we had the statistics and we knew where they are, and we can go in there, and it didn't matter for us, what their characteristics or their protected class was.

It was just about how they're getting paid.  So from our perspective, and the reason we're doing this hearing, and the reason you're here, and I appreciate it, is so how do we extrapolate from that term, very generic, low wage workers and stop using that and saying well, here are the specific characteristics which the EEOC enforces, which are protected under law, that the EEOC can actually have actionable results in, whether it's guidance, whether it's enforcement.

So how do we move away from that?  And what are actually the resources that we can use, and if there's any studies done, both broad -- from a micro and a macro perspective?

MS. DIAZ:  Yes.  I will try my best to answer your question.  You raised important points.  I think the question for the commission is, you know, recognizing that, yes, low wage workers are very diverse, and often face unlawful working conditions that are not within the commission's jurisdictions, such as wage and hour issues.

But at the same time, given, you know, numerous studies that do focus on the low wage workplace and the level of workplace abuses there, is how can the commission's resources be used best to strategically enforce the rights, and who are the workers who might be most in need of that strategic enforcement, given other factors.

And so I think in that sense, the low wage worker category or focusing efforts on the wage workers is very helpful for several reasons.  One, as we've already discussed, often workers, whether they're facing discrimination based on national origin, disability, age, sexual orientation, et cetera, if they are low wage workers, often their cases are harder -- it's harder for them to find a private attorney who will take their case.  Correct?

Also, often, they have less formal education, meaning that it's even more difficult for them to navigate the EEOC, or even figure out that the EEOC might be the right agency for them to go to.

Also, many workers are forced to sign arbitration agreements, meaning that they couldn't even, you know, continue in court if they were to try to enforce their rights.  And so I think in that sense, while I definitely agree that it is a very diverse, you know, very diverse communities that are included within low wage workers, I think the agency's enforcement power could be especially strategic and helpful in uplifting all workers' rights, if the agency were to focus its efforts on, you know, enforcing the rights of low wage workers.

And as we mentioned, also, thinking of other factors, such as linguistic capacities, literacy, rural areas, and so I'm not sure if that answers your question, but I do think that it's still important for the commission to use that as part of its focus in figuring out how to best strategically enforce the laws within your jurisdiction.

COMMISSIONER SONDERLING:  Yes, no, I understand.  And I don't think anyone disagrees with you.  But from our perspective, low wage workers, again, where I started, it's just not actionable.

You know, where do we, you know, who can we work with?  Where do we get these statistics to say well, okay, within these low wage worker categories, you know, here's the area under our laws of the protected categories that need the most guidance, that need the most enforcement.

And whether that's specific to industries or certain protected characteristics, you know, that's how we react and that's how we, you know, are trying to design this strategic enforcement plan.

And you know, again, the question for you is where do we go for that information?

MS. DIAZ:  Yes.  Well, I think, you know, there are a lot of studies out there, and I think also the commission's own statistics could be helpful in terms of looking at what are the charges before what industries, what bases of discrimination, what types of retaliation are workers coming forward with.

Also, I do think partnering with community based organizations, as other panelists have mentioned, to see what are the types of discrimination that they are seeing and what industries.

And so I think that there are many, you know, studies and first-hand experiences and the commission's own statistics that could be helpful in narrowing that down.

COMMISSIONER SONDERLING:  All right.  Thank you very much.  I appreciate that.  I want to move onto Ms. Rodriguez, and also Ms. Lundin about H-2A generally.  I've been on H-2A investigations, I've been to really nice facilities, the H-2A places that the transportation and housing is immaculate, and I've seen some really horrible, horrible things and have been involved in cases in both ways.

But I've also worked very closely with the grower community over the years to address these issues, both at wage and hour, and here at the EEOC.  So regarding the H-2A program, generally, and the EEOC's role in this, which is what we're here for today, and again, heard a lot of generalities about the growing industry as a whole, and farm labor contractors, and the whole design of the H-2A program, which is way beyond, you know, our jurisdiction.

So specifically, on the laws we enforce related to sexual harassment, we know states like California have mandated growers to perform sexual harassment training.  I'm curious from that perspective, you know, how that's been working when a state's actually mandated, and if you've seen compliance, and if you've seen broader compliance, not just within the State of California, but outside, especially in Oregon and Washington, and Arizona, that generally share a lot of the same labor contractors, if you've seen an increase in compliance in your involvement in those sexual harassment trainings.

MS. DIAZ:  Is that to Ms. Rodriguez or is that to --

COMMISSIONER SONDERLING:  It's whoever wants to answer it.  I know both of you have expertise in H-2A.

MS. DIAZ:  I do not claim an expertise in H-2A, in the area that we are practicing.  I actually don't see a ton of H-2A workers come into my office.  My colleagues do at CRLA.

COMMISSIONER SONDERLING:  Okay.

MS. DIAZ:  I just --

COMMISSIONER SONDERLING:  I'll direct it to Ms. Rodriguez then.  I'm sorry.

MS. DIAZ:  Okay.  Sure.

COMMISSIONER SONDERLING:  Yes.

MS. RODRIGUEZ:  Yes, thank you.  And I wasn't sure whether you were asking me because you were focused on the California law and the fact that there is mandatory training.  That is not the case in Washington State.

However, because of the focus that the EEOC has had on the agricultural industry and bringing cases of sexual harassment, we have seen more trainings and more policies being developed by growers.

But you know, the problem now is -- becomes that they're not always adequate.  You know, they're not always using the best practices that, you know, the EEOC has developed.

And the investigations, you know, we're having, as I mentioned, the Washington Farm Labor Association, they are doing trainings and also investigations where what they're doing is basically having a phone number for people to call, and not doing much with that, once they receive the call from the person calling to complain about harassment.

So those are new trends that we are seeing.  It's not just the Washington Labor Association, it's new players coming in and you know, basically, making -- trying to make money, right.  Trying to make money out of this and offering very little in services that they're actually providing.

COMMISSIONER SONDERLING:  Okay.

MS. RODRIGUEZ:  And, yes --

COMMISSIONER SONDERLING:  Well, I hope we can hear from WLA on that, as well, and their perspective as well, which is the point of this diverse listening sessions.

And I think I'm out of time, but I have a lot more questions on how we can work better with consulates, which, you know, I found that the Department of Labor was the best way to get complaints in from H-2 workers -- H-2A workers, H-2A's to be -- to actually work with the local consulates and I know the EEOC should be doing the same.  So thank you.

CHAIR BURROWS:  Thank you.  And we are now going to recognize Commissioner Lucas for ten minutes.

COMMISSIONER LUCAS:  Thank you, Chair Burrows, and thank you to all of the witnesses for the very interesting and helpful testimony today.

I wanted to follow on my colleague, Commissioner Dhillon's questions about literacy because I did notice that theme running through each one of the witnesses today, that literacy barriers can pose problems, in particular for many of the other cross-cutting categories that a vulnerable worker might fall into.

And I did want to ask you, so right now in our SEP that's, you know, the currently active one, notes that a vulnerable worker, it defines it, that work status language, financial circumstances, or lack of work experience, might make someone particularly vulnerable.

And I wanted to see, this is open to the whole panel, whether you think it would be helpful to explicitly add literacy as a component of what makes -- what might make a worker particularly vulnerable to discrimination to anyone who might want to jump in.

MS. Lundin:  I think that would be valuable.

COMMISSIONER LUCAS:  And while I have you, Ms. Lundin, I did think that was very helpful to hear that videos and readings aloud might be helpful.  I was wondering, to you or anyone else that wants to jump in, to what degree some of the workers that you worked with use radio or other forms that don't involve writing to communicate within their communities.

Are there specific radio programs, or some other kind of text that isn't written text that would be helpful?

MS. LUNDIN:  Yes.  Radio, at least in the farm worker context, is a really effective outreach tool, especially, you know, Spanish language radio.  We have radio stations in California that have indigenous language programming that is also effective.

But that is a really great outreach tool that we use.  People listen while they're working.  It's just on in the background.  Somebody will play it.  So that's effective.

COMMISSIONER LUCAS:  What about like a graphic novel, or a comic form?  So you see some things that are visually depicted and then there's a minimal amount of text.  Would something like that be helpful?

MS. LUNDIN:  Yes.  We've seen some outreach efforts like that.  I believe EPA had something similar around pesticide safety.  I do think that it's useful, I think that at that point, you're just looking at frequency of the message for it, you know, to really be useful.

I think that a simple graphic with a phone number and then just a really key part is being able to connect to someone, not having to navigate a big long phone tree, having an option to get connected to a human being as soon as possible to identify the language and identify an appropriate interpreter, is one of the most powerful ways that you can get through, just so somebody can have their question answered as quickly as possible.

COMMISSIONER LUCAS:  Yes.  And I know that you mentioned that you had managed to do a fair amount in person, now that the pandemic has waned to some degree.

I believe that the latest version of our reopening plan, in terms of opening our offices to the public, was going to involve our intake primarily only involving someone who could come into our office, but only have access to a computer.

I'm wondering if you could talk a little bit more about that.  I believe you were the witness who had mentioned something about trauma informed advocacy, to what degree that might make it more difficult for us to do intake for a vulnerable worker, if they still have to have that hurdle of working through a computer screen.

MS. LUNDIN:  I think that's going to be very challenging unless there's somebody who can be present to help them navigate the screen, and use a professional qualified interpreter over the phone or through Zoom, to facilitate that.

I think that could work for other workers, and that's not a reason not to do it, it just needs to be that both and approach, because the more that other workers are able to do that, that might be a preferred method, you will free up staff time to help people who need that additional support.  Thank you.

COMMISSIONER LUCAS:  I appreciate it, yes, I appreciated your point about and because certainly, the hybrid format has been very helpful for many workers, it increases accessibility.

But we don't want to make sure that we focus singularly on that.  Ms. Diaz, did you want to jump in?

MS. DIAZ:  Yes.  I just wanted to mention another factor in terms of access that we have seen come up in our cases is that the available times for contact with the commission, so -- or with the EEOC more broadly, so office hours, intake, interview hours, for many of the most vulnerable workers, they have no flexibility to take time off during the work day.

So the more the EEOC can provide options that are, you know, in the evenings, or on the weekends, would open up more access to more workers who, I think, would be within this targeted group of the most vulnerable workers.

COMMISSIONER LUCAS:  That's a great point.  I was just going to ask you if evenings or weekends would be helpful.  What about -- I'm wondering whether or not you've had any issues with -- I know we've had some delay in terms of our intake times, and sometimes employees will have to check back in to see if there's a time when they -- to schedule an interview.

So could you tell us a little bit about the burden that that might pose on someone who might not have consistent access to technology, or perhaps very limited bandwidth?  So you know, for those of us who use computers all the time, of course, you have it all day, you have your own personal computer, could be quite easy to check in multiple times and refresh a page.

But if you only have intermittent access like you have to go to a library, or perhaps you can only use your cell phone for a short window when you have a break, if you're a farm worker, or really any low wage worker.  What kind of burden does that pose?

MS. DIAZ:  Yes.  I think the biggest -- one of the biggest burdens there is the time again.  Because people, if they are able to take the time off for the interview, it will be for that very limited time.

And they might be, you know, missing pay during that time in order to be able to attend that interview or whatever else it might be related to the investigation.

So the more certainty and advanced planning workers can do, I think the more helpful it is for them to be able to participate and enforce their rights through the investigation process.

COMMISSIONER LUCAS:  For those who completely lack access to internet, what is the best way for us to reach them, in your opinion?

MS. DIAZ:  I would -- I actually, most of the workers that I have worked with have at least limited access, so I'll defer to others on the panel who might be able to speak directly to that.

COMMISSIONER LUCAS:  Okay.  Thank you.  Ms. Martorell, I think you wanted to weigh in.

MS. MARTORELL:  Yes.  So we work with workers who have mostly up to only a third grade level of education attainment.  And we have found creating popular education materials in language to be very effective.

And also basically reaching our workers through what's called a LiveApp.  It's sort of like a Whatsapp or a chat app that our community uses.  And since most community members do have cell phones, and they are able to get text messages, it's been very successful texting messages to them through the LiveApp, and reaching them like immediately.

And providing all the valuable information that we can provide through that LiveApp, and so that's another way of using technology in a limited way, but also reaching community members who are actually having existing technological barriers because they don't normally have a computer, own a computer, or a laptop, or a desktop, or even maybe have access to internet.

So there's that whole digital divide, but through texting, we have found that to be very successful.

COMMISSIONER LUCAS:  So would having sort of a chat function, perhaps, be helpful?  So that even if you couldn't get on the phone, you could, you know, various websites will have sort of chat functions.  Sometimes it's a bot, sometimes it's a real person.

But having that as an additional forum, would that maybe be helpful for some workers?

MS. MARTORELL:  Yes.  Yes.  As long as it's in language.  Yes.

COMMISSIONER LUCAS:  Yes.  I want to stay with you, Ms. Martorell, because I had some questions in particular about Asian American workers.  I thought those were helpful that you mentioned the model minority myth and how diverse the group of workers are.

I know that you're primarily working with Thai workers, but obviously, there are a variety of Asian American workers from a variety of immigrant groups, many of whom, in my work with stakeholders, I understand, culturally, there may be a reluctance to talk to government workers, to report on your employer in terms of feeling comfortable doing that, in terms of authority.  Things like that.

So could you talk a little bit more about that in particular so that that resonates with you and also how we might be able to overcome that barrier?

MS. MARTORELL:  Yes.  Well, you know, we work in collaboration with many Asian Pacific American CBO's, community based organizations, to address issues of housing, and food insecurity, issues of, you know, labor, and human trafficking, and just a wide range of issues.

So as most people know, the Asian American community is very diverse, and multilingual.  It's not monolithic.  And we do have poverty in the Asian American community among our immigrant populations in particular.

And language and cultural barriers, and just a lack of understanding their rights and they also don't know how to access resources that are critical to them, especially when those resources are not linguistically or culturally appropriate.

And so we have, for the longest time, been together with all of our other Asian American CBO's, have been trying to ensure that all the data collected by various entities, be it the academic institutions, or governmental agencies, be disaggregated so that at least EOC, for example, can work with disaggregated data and can actually understand what are the specific needs and issues of each individual Asian ethnic community.

And even to date, I'm not sure if any data on Asian Pacific Islanders are disaggregated within the EEOC's database.  So that's the first thing that we need to address.

Then the second thing is that we need to make sure that multiple Asian languages are covered, as much as possible.  I know that for many governmental entities, we have to meet this threshold level, meaning there's got to be enough of a sizeable population to warrant translating some of these materials in language.

But what happens is then that those communities are then neglected and yet, they may be disproportionately affected by the most heinous crimes committed against them, or heinous exploitation committed against them, for example.

And so yes, it's very important also to bust this myth, this model minority myth, that all of us Asians are well educated, economically successful, and that we have access to resources.  That is not true.

We are dealing with poverty.  We are dealing with food insecurity, housing insecurity.  We're dealing with just not understanding how to, for example, enroll onto public benefits, or even be eligible for public benefits.

We have many Asians -- Asian immigrants who are eligible for public benefits, for example, but do not even know that they're eligible.  And don't know how to enroll because of the language barrier.

And yes, immigrants are -- if they're undocumented, are going to be fearful to come forward.  They don't want to be detected.  And then we deal with a community that also wants to not like, quote, unquote, rock the boat.  Right?  And they feel like if they're challenging any institution, or challenging their conditions, that they will suffer some consequences, and so they will just not voice these issues.

And that's where service providers like Thai Community Development Center is very crucial in really helping them understand that they have rights, and they could assert those rights, and not be fearful.

As long as we provide them with that kind of level of trust and confidence, that by going forward, they will not be in danger of any kind of reprisal, retribution, or retaliation.

COMMISSIONER LUCAS:  Thank you so much.  I really appreciate it.  I think my time is up.

CHAIR BURROWS:  Thank you.  And so I have just a few questions to round out this panel.  I wanted to start actually with Marisa Diaz, and I'm going to have the same question for everyone else.

But I'll start with you.  I know that at Legal Aid at Work, it's good to see you again, by the way, you represent immigrant and other workers who face discrimination based on their national origin or ethnicity.

Could you tell me what the top, let's say two or three issues that you're currently seeing affecting these workers would be?

MS. DIAZ:  Yes, thank you, Chair Burrows.  I would say the first, across our organization's program areas, which include other issues such as disability discrimination, discrimination based on gender, and other characteristics, across our programs a major issue is always retaliation and immigration related retaliation.

So workers that when they contact us, sometimes before they -- often before they've decided whether they are going to assert their rights, and that is always a concern.  And also sometimes plays out in our cases.

And then in -- and another issue, I would say, that comes up a lot is national origin-based harassment, and other forms of harassment in the workplace.

And also, we also do specialize in looking at issues of language discrimination, which is another form of national origin discrimination.  And that continues to appear, and also I think it goes to my earlier point about workers not being aware of their rights, and employers sometimes not being aware of the way that language discrimination is, in fact, illegal under the laws that the EEOC enforces.

CHAIR BURROWS:  Thank you.  With respect to retaliation, you may know that we have at the EEOC a joint initiative with the Department of Labor and the National Labor Relations Board to really figure out how to get in front of that problem, how to prevent it.

Do you have any suggestions with respect to this population in particular of things that we can do or should be doing more of?

MS. DIAZ:  Yes.  I think I'd reiterate the point I made earlier around the commission's potential role in supporting worker's requests for immigration relief based on the workplace dispute, whether that's because a crime's occurred in the workplace that are qualifying for U visas, or a worker's request -- prosecutorial discretion from Department of Homeland Security, because that does provide necessary protection for them to be able to participate and feel that they can come forward, given the risks that they are facing in doing so.

I would also emphasize, you know, the -- I know that there's many charges that the agency receives, and so it's always a challenge to process those, but the more then agency can do to try to, you know, speed up as much as possible while still doing a thorough job on its investigations, the better, because that is also a challenge when retaliation either has already occurred, is there's a threat.  The slower the process is, the less worth it it might be to workers to take that risk of stepping forward.

So I would also say the more the agency can do for all workers in speeding up the process, again, while maintaining quality and thorough investigations, the better in addressing that issue particularly.

CHAIR BURROWS:  Thank you.  So I'll go next to Ms. Lundin and Ms. Lopez from CRLA.  For those that you represent, what are the top two or three issues, let's say, that you are seeing with respect to vulnerable workers?

MS. LUNDIN:  As it pertains to EEOC, I would echo a lot of Marisa Diaz's comments.  National origin discrimination that includes language discrimination, that's a big component of what we see in the indigenous program.

We will see a non-indigenous Latino foreman or forewoman who is saying to workers that you're not to speak your indigenous language in the workplace under any circumstances during breaks, really expansive prohibitions that don't have a legitimate business interest, and exceed the scope of any even possible claim to that effect.

National origin discrimination can fly under the radar for investigators, judges, other attorneys who are unfamiliar with intra-ethnic discrimination or harassment.  We've also seen that become an issue where an investigator will not understand how, you know, so to speak, a Mexican person could discriminate or harass against another Mexican person, or don't understand the cultural context of the harassment that is very targeted, anti-indigenous mistreatment.

So as far as what EEOC could do to support, I think that doing very short vignettes, little outreach videos, for example, on language discrimination, did you know that your employer cannot forbid you from speaking your language in the workplace without legitimate business justification.

Quick little almost like little plays, a little -- short little scene, what it looks like, instead of just describing it, I think that as human beings, we're very highly attuned to narrative, and people hear that and receive that information on a different level.  Thank you.

CHAIR BURROWS:  Great.  Ms. Martorell, do you have thoughts on what are the top issues you've seen and I also want to just thank you for speaking out about so many other challenges that Asian American and native Hawaiian, and Pacific Islander workers have been facing during this time.

MS. MARTORELL:  Yes, thank you.  Well, when we're talking about the ethnic immigrants from various Asian American Pacific Islander communities, we have to understand that there's the mainstream economy, and there's the ethnic enclave economy.

And they tend to work, because of language and culture barriers, tend to work in the ethnic enclave economy, and within that economy, you see discrimination by co-ethnic employers, based on age, gender, and even disability, and pregnancy.

So there are going to be employers who will no longer continue to allow the cook in that restaurant to continue working there because she has aged out, for example.  Right?

Or wait staff because they don't look young enough, for example.  Or workers who now are pregnant and won't be, you know, a worker who can work harder because of that.  And so they'll be let go.

And then of course, we've seen industries within this ethnic enclave economy, where they prefer like seniors and will discriminate against, like for example, the booming cannabis industry.  Right now, the business owners are actually recruiting specifically senior citizens because of their ability to -- because of their green thumbs.

Their ability to harvest and know how to grow the cannabis and harvest the cannabis.  And so now, they are employing the seniors, but up to a certain point, and then they let them go once they've been able to harvest the cannabis, for example, for medical purposes and what have you.

So yes, we need to really make a distinction between the -- these immigrant workers in the Asian community working in the mainstream economy versus the ethnic enclave economy and where discrimination is seen.

CHAIR BURROWS:  Thank you.  Ms. Rodriguez.

MS. RODRIGUEZ:  Thank you very much.  I would echo a lot of what has already been said.  What is more common in Washington State is the harassment based on national origin, being, you know, being told that Mexicans are lazy.  Those kinds of stereotypes are still very common.

And then also harassment towards our indigenous, Latinx workers because of their cultural differences and language.  That is common and in addition, the harassment that Marisa talked -- the retaliation that Marisa talked about that when workers voice complaints about national origin discrimination, and they're retaliated against.

And it would be extremely helpful as some of my colleagues have echoed, that EEOC make sure -- makes sure that that group is protected, and particularly that it uses all of its resources, including its ability to provide you and T certifications for these workers so that they can stand up and do something about what is happening in the workplaces.

CHAIR BURROWS:  Okay.  Thank you so much.  Well, I have dozens of questions for you all, but I am also sadly out of time.  So that concludes our first panel.  I would like to thank each and every one of you, as well as my fellow commissioners and will now take a 15 minute recess and resume exactly at, let's see, 1:56.

Wait a minute.  I'm sorry, no.  It is now 1:41 so we'll be resuming at just about 2 o'clock.  Let's just make it round at 2 o'clock.  So I'll see you then.  Thank you.

(Whereupon, the above-entitled matter went off the record at 1:41 p.m. and resumed at 2:00 p.m.)

CHAIR BURROWS:  The listening session will now resume.  Welcome back to my fellow commissioners and to those members of the public who are joining us virtually today.  And a very special welcome to our second panel of distinguished speakers for participating in today's listening session, and for sharing your insights here today.

With that, I'm very pleased to introduce the speakers on our second panel in the order that they will be speaking.  First, Monica Guizar is associate senior counsel for the Service Employees International Union, SEIU.

SEIU is a union of about 2 million diverse members in healthcare, the public sector, and property services, dedicated to improving the lives of workers and their families.  Prior to that role, Ms. Guizar worked for over a decade at the employment firm, Weinberg, Roger, and Rosenfeld.

And as an employment policy attorney for the National Immigrant Law Center, she served as both the president of the Mexican American Bar Association and Latina Lawyers Bar Association.  Welcome to you.

Next we have Vidhi Bamzai, who is a staff attorney in the Southern Poverty Law Center's Immigrant Justice Practice Group, working on immigrant worker rights issues, including representing victims of the historic 2019 ICE raids at poultry plants across Mississippi.

She also represents those who are currently and formerly detained at an immigrant detention center, and who are alleging a forced labor scheme against the facilities operator, CoreCivic, Incorporated.

Originally from Detroit, Michigan, Ms. Bamzai is currently based in Jackson, Mississippi.

Next Ian Anderson, who is joining us from the Legal Services Project.  He's the manager at the Transgender Law Center -- I'm sorry, the Legal Services Project Manager at the Transgender Law Center.

So welcome to you, the Transgender Law Center is the largest national trans-led organization, employing a variety of community drive strategies that serve to protect the rights of transgender and gender nonconforming persons.

Before joining TLC, he served as an adjunct lecturer at the University of Berkley and the Jesuit School of Theology, at Santa Clara University.

Next we have Julie Kegley, a senior staff attorney and program director with the Georgia Advocacy Office.  The federally funded private nonprofit protection and advocacy system designated to protect and advocate on behalf of persons with disabilities.

For 20 years, Ms. Kegley has represented hundreds of people with disabilities on a variety of issues, such as removing restrictive guardianships, working to achieve competitive integrated employment, ensuring effective communication in the healthcare and legal settings, and ensuring that persons with disabilities can obtain Medicaid waiver services, so that they can live successfully in the community.

Thanks to each one of you for being here today.  As a reminder, you each have five minutes for your opening remarks.  I'll begin now with Ms. Guizar.  You're recognized for five minutes.

MS. GUIZAR:  Thank you, good afternoon, Chair Burrows, Vice Chair Samuels, and commissioners.  Thank you for inviting me to speak today on behalf of SEIU, where I serve as lead counsel to our property services division.

The division represents and organizes workers in the following industries:  Janitorial, security officers, airport workers, and stadium workers.  I also oversee our immigration work, focusing on issues that impact immigrant workers.

Today, I would like to highlight workers in two industries that SEIU represents and organizes, janitorial and fast foot workers in the hopes that the commission will consider prioritizing these industries in its forthcoming strategic enforcement plan, in identifying vulnerable workers and reaching underserved communities.

The janitorial industry is largely immigrant workers, and many are women.  Sexual harassment, assault, unwanted touching, sexual -- and unwanted sexual advances have been well documented in the janitorial industry.

The 2015 release of the PBS Frontline Documentary, Rape on the Night Shift, shared the story of janitors exploited by their supervisors in the solitude of the night.

Since the airing of that documentary and despite the many laws on the books, including in California, sexual harassment, assault -- oh, and including the EEOC's recent settlement of a lawsuit against the janitorial contractor that was featured in that documentary, sexual harassment and assault in the workplace continues to be prevalent and a recurring problem for this vulnerable workforce.

Indeed, janitors continue to be subjected to sexual harassment, assault, and even rape in the workplace.

Additionally, fast food workers in this country are similarly subjected to unlawful sexual harassment and discrimination, including race and national origin discrimination and restrictive language policies, in addition to wage theft and other workplace violations.

Despite the fact that some fast food workers in parts of the country have joined together to protest these unjust working conditions, this vulnerable population of workers continues to fear coming forward to report violations of sexual harassment, discrimination, wage theft, and other unlawful pay practices.

The exploitation of vulnerable workers, such as those that I have highlighted in these industries, coupled with threats, intimidation, retaliation, and the use of immigration status, or perceived status, against these workers, keeps the cycle of exploitation of this vulnerable workforce going.

For this reason, we request that the commission consider prioritizing in its forthcoming strategic enforcement priorities, interagency collaboration with the Department of Homeland Security and its agencies, and to develop a formal process for workers, advocates, and their lawyers, to submit affirmative -- requests for affirmative immigration protections for immigrant workers in labor disputes, via the exercise of prosecutorial discretion, in addition to request for certifications of new visas and assisting with T visas, as a panelist in the earlier session described.

Just over the Labor Day Weekend, the Department of Homeland Security announced in a fact sheet on empowering workers that it has been supporting labor enforcement agency investigations by considering on a case-by-case basis, victims and witnesses of labor exploitation for prosecutorial discretion.

DHS is streamlining and hopefully will announce updates to this process for strengthening its partnership with labor enforcement agencies to ensure that workers are protected, and unscrupulous employers are held accountable.

As you may know, in July the Department of Labor announced a process by which workers involved in workplace disputes can seek its support for prosecutorial discretion.  Likewise, the National Labor Relations Board issued a general counsel memorandum on ensuring rights and remedies for immigrant workers under the NLRA, that states that the NLRB will seek immigration relief in the form of deferred action, parole, continued presence, new or T status, a stay of removal, or other immigration relief as available and appropriate to protect workers in exercising their labor rights.

Supporting affirmative relief for immigrant workers will further EEOC's mandate and help to ensure workers come forward to report workplace violations and to serve as witnesses in any investigation.

Thank you for your time.  And please let me know if you have any questions.

CHAIR BURROWS:  Thank you.  And we'll go next to Ms. Bamzai.  You're recognized for five minutes.

MS. BAMZAI:  Thank you so much, Chair Burrows, and thank you so much to Vice Chair Samuels and the rest of the commission.  My name is Vidhi Bamzai.  My pronouns are she/her, and I'm, as Chair Burrows mentioned, I'm a staff attorney at the Southern Poverty Law Center, based in Jackson, Mississippi, working in our immigrant justice project.

Over the last decade, SPLC has been advocating on behalf of low wage immigrant workers in the south, across industries but with a specific focus on poultry and meat packing, agriculture, and within industries that hire H-2A, H-2B, and J-1 guest workers, such as hospitality.

We've worked with the community organizations supporting poultry workers and we represented poultry workers in litigation and in administrative complaints, including EEOC charges regarding wages and working conditions.

Some background on the industry for everybody here, SPLC has a very long history of representing poultry workers in the Deep South.  Poultry processing is concentrated in the Deep South and states with little state level regulation of wages and working conditions.  And also low rates of unionization.

Often, poultry plants are located -- poultry processing plants are located in rural areas with limited job opportunities which constrains the ability of workers to risk losing their jobs by speaking out about workplace violations.

Historically, the industry has employed a largely U.S. citizen, African-American workforce.  Now, due to deliberate recruitment efforts, there's a large immigrant workforce as well, including undocumented immigrants and recently arrived refugees.

In our work, we've also encountered other vulnerable populations working in poultry plants, including incarcerated people and children.  And we found that these workers are targeted by the industry because of a perception that they are less likely to speak out about workplace violations.

These geographic and demographic factors create an environment where it's difficult for workers to speak out about workplace safety and health, and because of the combination of economic insecurity, language barriers, social isolation, and immigration status.

A lot of these barriers for workers creates issues for workers to come forward about safety and health, and those issues are significant, given the high rates of injury in poultry plants.

Poultry plant processing jobs are some of the most dangerous in the country, with injury rates 60 percent higher than the national average.  There are high rates of musculoskeletal disorders, especially carpal tunnel syndrome and tendonitis because of the repetitive nature of the work.

And workers are typically working shoulder to shoulder on what is called a, quote, disassembly line, where they must perform the same motion tens of thousands of times per day.

And while the EEOC does not reach most health and safety issues, the Southern Poverty Law Center has actually collaborated on an American Disabilities Act case with the EEOC to sue a poultry plant, whose attendance policies discriminated against disabled and injured workers, including workers who were disabled from repetitive work on the poultry line.

This lawsuit is captioned as EEOC v. Wayne Farms, and was filed in the northern district of Alabama in 2016.  Another issue that we see very often in poultry processing plants are ongoing and serious injuries associated with serious and ongoing sexual harassment and assault.

We at SPLC have represented several women impacted by the historic 2019 ICE raids, which took place at poultry plants across Mississippi.  And we represented them in sexual harassment claims against their employers.

And in this process, we found that many plants do not have policies or systems in place for employees to report instances of sexual harassment, and this is particularly true for workers who speak languages other than English.

Many of these workers fear and experience retaliation for reporting sexual harassment, and so they are less likely to report.  In this experience, you know, we've also had some concerns regarding protections for immigrant workers who filed charges.

We've had some difficulty in obtaining U visa certification for workers who participate in investigations with the EEOC.  And with the lack of access to immigration protections, this has had some, it's had some devastating consequences for workers in the south, especially where we've seen an increase in workplace immigration enforcement under the past administration.

This threat of immigration enforcement chills workers from exercising their rights, and we hope that the EEOC will consider ensuring that workers who file charges are protected.

The Department of Labor recently issued a FAQ explaining the process for workers involved in labor disputes, to seek prosecutorial discretion, and the EEOC should also consider issuing guidance on its process for workers to access protections from the Department of Homeland Security.

And lastly, the poultry industry has a history of seeking out vulnerable worker populations, maintaining unsafe workplaces, and resisting worker safety measures.  Workers, particularly those who are low income and undocumented, experience retaliation and rarely find justice.

We encourage the commission to prioritize poultry workers, as you develop your strategic enforcement plan.  Thank you, again, to the commission.

CHAIR BURROWS:  Thank you.  We'll go now to Ian Anderson.  Welcome, and you're recognized for five minutes.

MR. ANDERSON:  Thank you so much for taking the time to listen to these stories.  It's an honor to speak with you all today, and I very much appreciate your ongoing efforts to address discrimination and enable all people to access meaningful work.

So in my role at Transgender Law Center, I help manage the legal information help desk and the prison mail response program that collectively responds to about 2,000 inquiries a year from transgender and nonbinary people across the country.

And today, I just wanted to share some of the trends we have noticed from the approximately 300 employment related inquiries, across 35 states and D.C., that we've received in the last two years.

One of the most prevalent issues we've heard from transgender workers was facing coworkers or supervisors who failed to recognize something as basic and fundamental as their gender.

We've heard numerous reports of people being intentionally misgendered or dead named on the job, in other words, being referred to by pronouns, honorifics, or names that do not align with the worker's gender identity.

In some instances, this happened in the wake of someone beginning a transition, or coming out on the job, or they've made an effort to show up at work as their authentic selves, and be vulnerable with their coworkers, only to be repeatedly met with discrimination and rejection.

In other cases, the people who reached out to us have been living as their gender for years, but they experience misgendering or harassment after a coworker or supervisor disclosed their trans status without their consent.  This kind of outing is, unfortunately, a very pervasive trend we've noted in the inquiries we receive.

Similarly, numerous employers have refused to allow trans employees to use their chosen names on nametags, or have refused to update people's names on public facing employee lists, even when other employees are allowed to use names other than their legal name.

Some systems include preferred name fields, that present the appearance of creating a way to recognize non-legal names for employees, but which are not used in practice, with the result, in fact, of a lot of people being outed on the job.

We also just hear alarmingly high numbers of reports of serious sexual harassment, and even assault, reports of coworkers or supervisors repeatedly asking invasive questions about trans-workers medical history or their sexualities, making sexual advances on trans-workers on the job, or even physically threatening or attacking people at their place of work.

Another sort of, I think, under-acknowledged issue in the sort of broader employment rates discourse is employers offering self-funded health plans that contain explicit exclusions for gender affirming healthcare.

I think because there is so little recourse for these workers to directly challenge denials of care under those plans, even in states that otherwise, you know, have -- prohibit discrimination or exclusion in healthcare plans in their state law, because these are -- these plans are generally regulated by federal agencies, you know, these workers rely on the EEOC and other agencies that address employment discrimination to fight this discriminatory exclusions.

Even in cases where employees do manage to access gender affirming treatment, either through their insurance or through their own funds, it's unfortunately extremely common for them to be denied leave that they are legally owed, or even being demoted or laid off, or having their hours cut after taking medical leave for surgery.

So that's kind of one example of the many reports of retaliation up to and including firing that we've noted for reporting discrimination or harassment.  So for instance, after one low income black trans man in Texas reported the harassment he faced, his employer cut his pay, and removed him from his work location, rather than punishing the people who harassed or threatened him.

And this is, unfortunately, part of a much broader trend we've seen of employers just refusing to actually support workers who report discrimination.

I wanted to highlight a couple of specific trends that make some trans workers especially vulnerable to discrimination at work in our things that we've noticed.

So although the issues that I've mentioned above do affect trans people working in every sector and across income brackets, from incarcerated workers to minimum and subminimum wage workers in food service and retail, to nurses, teachers, and even software engineers, of course, those with fewer financial resources have less ability to secure legal representation and are hence, especially in need of support from agencies.

A lot of people facing discrimination based on disability or race, in addition to gender identity or having issues locating a job because of a combination of their being trans and also having a criminal history, you know, just as an example of some of the ways these forms of discrimination can intersect.

We heard from one black trans man working for a mail delivery service who had a coworker repeatedly refer to her by both anti-trans and anti-black slurs openly, and in front of management, who refused to take action.

It's also important to note, a lot of people seem especially vulnerable to discrimination or violence when they're employed as temp workers, or contractors.

    And finally, I just wanted to highlight that nonbinary workers do face particular challenges, having their identities respected at work.  For instance, they're often held to binary uniform or grooming standards, are often denied access to gendered facilities that are safe or appropriate for them.

And finally, while people do experience these issues across all the states that we've surveyed, both states with and without state level protections, it is, you know, predictable, employers in states without state level protections tend to be bolder in their discrimination.

For instance, just -- we've heard a story of a nonbinary worker in Tennessee, who was actually assaulted by their employer.  Or another instance of a trans woman in North Carolina who was explicitly told that she was being fired because she was trans.

I think this highlights the importance of the EEOC's role in making sure that the federal protections established in Bostock are actually realized across the country.  Thank you so much, again, for your time.

CHAIR BURROWS:  Thank you.  We'll go now to Julie Kegley.  You're recognized for five minutes.

MS. KEGLEY:  Thank you everybody and the commissioner.  Thank you for the opportunity to provide comments on the EEOC's strategic enforcement plan.

We urge the commission to retain the vulnerable worker category and to specifically include people with disabilities, especially people with intellectual and developmental disabilities.

We encourage the commission to focus its enforcement activities on people with disabilities who experience failure to employment, whether it be in the application process, the hiring process, or on the job.

One recent example we are aware of, is a person who is blind was hired for a job at a large workplace, the employer refused to provide an orientation and mobility specialist to onboard and orient the person to the workplace, stating that the state vocational rehabilitation agency needed to be the one to do that.

Another example that we see is that employers refuse to provide American Sign Language, ASL interpreter as a reasonable accommodation to deaf people whose primary language is ASL.

Many employers do not know that ASL is not the same language as English.  Not having an ASL interpreter as an accommodation to even fill out an application, precludes many deaf people from applying for, interviewing for or obtaining a job.

We have also heard from people with disabilities that the EEOC online public portal is not accessible or user friendly.  People with disabilities should be aware that they can request an accommodation to submit an online EEOC complaint.

A specific thing that the EEOC could increase the accessibility of the portal is by providing videos with ASL interpretation explaining every step of the online portal process.

Another barrier to filing and EEOC complaint is that in Atlanta, where I am, there is not an option for a person to walk into the EEOC office and speak with a representative.  The only option is to use the public portal, complete the steps and request an intake interview with an EEOC representative about filing a charge of discrimination.

Most recently as last week, the Atlanta EEOC office did not have any available appointments for a person to have an intake interview with an EEOC representative by phone, about their issue for the next six months.

We encourage the EEOC to conduct outreach to employees around the country who work for employers that have Section 14C certificates.  Employers with Section 14C certificates are allowed to pay people with disabilities subminimum wage.

In Georgia, there are 10,000 14C certificate holders that employ over 200 people with intellectual and developmental disabilities, and pay them less than minimum wage.

Many of these employees work in large warehouses doing piecemeal work, and they're paid based upon their productivity per hour, which can be less than $1.

These employees are segregated, and they only work with other people with disabilities.  These employees could benefit from reasonable accommodation to do their job.

Thank you for the opportunity to provide these comments and I am available for questions.

CHAIR BURROWS:  Thank you.  And we will now have questions from the commissioners.  Each commissioner will have ten minutes for questions, and I'll start with the Vice Chair.

VICE CHAIR SAMUELS:  Well, thank you so much, Chair Burrows, and thank you to our witnesses for their truly compelling and insightful testimony.  I really appreciate your sharing your insights with us today, and I know that they will be enormously helpful as we try to think about our enforcement priorities for the next few years.

I have more questions than I likely will be able to ask, but let me start with Ian Anderson, if I might.  You have noted that discrimination tends to be more pronounced, or more aggressive, or less hidden in states without state level protections.

Can you talk about whether there are differences between industries, or sizes of employers, or regional patterns that you've observed in the calls that you've gotten?

MR. ANDERSON:  Yes.  I mean, those are very fair questions.  It's a little difficult to pull that apart because, you know, unfortunately, like so many of the issues we're seeing are based in very, very broad based stereotypes against trans people, and very, very like longstanding biases that, unfortunately, tend to show up in a lot of different industries.

I mean, I will note that in some industries, I think we've heard more reports of trans people being more afraid to come out at all.  I mean, of course, there's some sectors that tend to have different kind of you know, gender demographics.  Right?

And so some industries that are traditionally male dominated, even a trans woman working in that industry may not even feel safe enough to disclose her gender identity at work.  Right?

So I think to the extent that I can generalize by sector, I mean, that is something that we sometimes see, and I think to the extent that, you know, that -- unfortunately, that concern is often borne out by then reports of some of the discrimination that we hear on the job.

So you know, to some extent, that's a trend that we note.  Unfortunately, there's not a lot of difference between large and small employers.

I would, you know, I think I sort of came -- when I began doing this work, I think I labored under the misgiven assumption that larger employers would have better systems and at least by -- have better like -- be better equipped to like update their -- the way that they recognize employees' genders and names, and have perhaps more sophisticated ways of acknowledging, you know, employees' identities, even if they had not managed to undergo the considerable expense and time that it takes to legally change their name and update their documents.

And unfortunately, that is not always the case.  So you know, unfortunately, it's difficult to draw any broad trends, but I would say that, again, some of the most kind of egregious stories that we hear have tended to come from states where there are no state level protections

VICE CHAIR SAMUELS:  That's helpful.  Just one other question about the nature of discrimination.  When you talk about company failures to cover gender affirming care in their health insurance, are you finding that they still have categorical exclusions?  Or is it more refined that they don't cover certain types of services or care?

MR. ANDERSON:  Yes, we absolutely see both.  And I mean, you might be aware that like it tends to be larger employers and unions, and to some extent government employers that tend to offer self insure plans.  So that's another one sort of trend I would note.

But within the self insured plans, there's all kinds of exclusions.  Some are just a blanket, you know, any gender affirming procedures.  It's often much more problematic language.  They ban sex reassignment surgery, or any, you know, services related to gender transition, or things like that.

But yes, in other cases, it can be a little more refined, but it still results in the same thing, people not being able to access the gender affirming care that they need.

VICE CHAIR SAMUELS:  Well, thanks for that information.  I appreciate it.  Let me turn to Ms. Guizar.  You know, SEIU has done amazing organizing work, and I'm particularly interested in any suggestions that you might have for ways that we can reach younger workers, particularly in the fast food industry where it tends to be teenagers who do this as after school jobs, and aren't aware of their rights, and are particularly subject to harassment and other forms of discrimination at work.

Do you have suggestions for how we can continue to reach, you know, these particularly vulnerable workers who may not even know that EEOC exists?

MS. GUIZAR:  Well, thank you, Vice Chair Samuels, for that question.  And we get that question a lot from government agencies.  And I think the younger demographic tends to, you know, be on social media, and I understand that, you know, the government has its, you know, restricted funding and they may not have the ability to do much social media.

But I think that that's one way, probably to reach younger workers, is through social media.

The second, I think, would be to expand education and know your rights with community organizations including, you know, the Fight for $15, which is affiliated with SEIU, and organizes fast food workers across the country.

So I think we'd be willing to talk more about exploring with the national fast food workers organization.  And I think just any way you do more public outreach, social media, and other ways to, you know, live, you know, social media live events, trainings, I think would probably be the best to reach younger workers.

VICE CHAIR SAMUELS:  Thanks.  That's very helpful.  Thank you.

MS. GUIZAR:  Thank you.

VICE CHAIR SAMUELS:  Let me turn to Ms. Kegley.  A couple of questions.  The first is we have engaged in significant partnerships with different types of advocacy and other nonprofit organizations to be able to reach hard to reach communities and to inform our work for vulnerable workers.

I don't know if the Georgia Advocacy Organization has been involved in those, but are there ways that we could promote partnerships with advocacy offices across the country, in order to reach people with disabilities, and particularly, people with intellectual or developmental disabilities?

MS. KEGLEY:  Yes.  We have a national organization that's called the National Disability Rights Network.  And it is comprised of all of the state and territory protection and advocacy systems that that would be a great way to partner with NDRN, is the acronym.

And then we also work closely with disability rights organizations all around the country, whether it be the Center for Public Representation, the A R C, the ARC, and so we do collaborate, not just the people within the state, but nationally, and we conduct outreach.

We do webinars.  We have live streaming events, and we welcome the opportunity to partner with the EEOC to get the word out.

VICE CHAIR SAMUELS:  That's great.  And an invitation that I am pretty confident we'll want to take advantage of, so thank you.

I think I have one -- time for one more question and I'll direct it to Ms. Bamzai.  So you know, we heard on the first panel about how immigrants and undocumented workers are often fearful of reaching out to the EEOC in order -- because of the threats of retaliation.

And you spoke about that as well.  But I want to focus on the employer's side of the equation for a minute.  And based on your experience, are there particular types of policies or practices that unscrupulous employers use to try to target their employees or prevent undocumented workers from asserting their rights?

MS. BAMZAI:  You know, I think at this time, at least in my experience, what we have seen that as opposed to blanket policies that are applied by -- and utilized by employers, it is -- it comes down more to the culture that is often at these facilities, that are, if not actively encouraged, but allowed by employers, in which many workers just frankly do not feel comfortable or safe to raise any of their concerns.

So oftentimes, with many of our clients, they share that there is just not a culture where they feel comfortable addressing or raising any of their concerns because the culture is structured in such a way that whether they do tell a supervisor, the supervisor is not going to tell somebody else.

Because the supervisor may not have somebody else to tell.  But the supervisor is also reliant upon the workers to continue production in the facility.  So -- and oftentimes, there are other policies and statements that are made.

There are threats to recheck documents after employment has started.  And we have also heard -- had instances where people have threatened to call ICE after workers have complained.

So those circumstances and those situations certainly happen.  And it's all part of the general culture that is often in existence at facilities like this.

VICE CHAIR SAMUELS:  Again, thank you all for these insights.  It is invaluable to hear from you.  And I very much look forward to continuing the dialog.  Thank you.

CHAIR BURROWS:  Thank you.  And now we go to Commissioner Dhillon.  You're recognized for ten minutes.

COMMISSIONER DHILLON:  Thank you.  And thank you to all of the witnesses on this panel for appearing here today.

Ms. Kegley, I have a couple questions for you.  First of all, thank you for appearing here today.  I understand you replaced one of your colleagues who testified in front of the EEOC back in 2011.  And in her testimony in 2011, she talked about employers who had created environments of flexibility and accommodation that had been successful in accommodating workers with disabilities.

She identified several, including Boeing, Starbucks, and Marriott.  And she described these employers' practices as exemplary.

Today, I was wondering if you could share with us the kinds of practices that you see employers adopting, particularly as we come out of the pandemic, that you think are worthy of emulation, or things that we ought to be aware of as a best practice for employers to follow?

MS. KEGLEY:  Yes.  A best practice to follow, but one especially for people with intellectual and developmental disabilities, is to conduct a discovery profile of the person to find out their strengths, their abilities, how they best work.

I mean you could really get into the details as to time of day that they want to work, how often they may need a break, the kind of jobs they want.  And then you take the results of that discovery profile, and it goes in a process called customized employment, where you are seeking a customized job for the person with the disability, and working with the employer to fill that employee's need, whatever it may be.

So working very closely with the employer and the employee, kind of a job carving.  And it has been very successful when done well, because the employer recognizes that they've got this employee, and oftentimes, employees with disabilities are the most dependable employee.

They want to come to work.  They want to make the money.  They're excited about getting out there and having a valued social role.  And so that is just one example of what I would say would be a best practice.

COMMISSIONER DHILLON:  Another issue that you identified, that I found very interesting is the issue of literacy.  Earlier in the hearing today, in the first panel, we talked about literacy and the witnesses talked about it, but in a slightly different context, in terms of either language access or just simply people who have not had the educational opportunities to develop their literacy skills.

But again, this is a theme and you identified it with people who have intellectual disabilities, and so I'd be interested in your thoughts about what the EEOC can do to reach those individuals who have a literacy issue of a, you know, again, we're identifying a theme, but what can we do to reach those people and make sure that they're aware of their rights?

MS. KEGLEY:  Yes.  In Georgia, we have several active stock advocacy groups that are made up of people with intellectual and developmental disabilities and they are aware that they may need support in all areas of their lives, with employment being one area.

So they have identified supporters who can help them brainstorm what kind of job they want, how can they apply for the job; how do they even talk about the disability with the potential employer.  Just all of these things.

And another way would be to get in with the school system, with the transition age group between the age of 14 and 22, and really get in there and talk with them about, hey, these are your rights as an employee, and if something is not happening the way that it should be, there is the EEOC, and here's how you go about that process.

COMMISSIONER DHILLON:  It seems to me that a lot of what you're talking about in your last answer is people who are entering the workforce.

But then when people are in the workforce and have literacy challenges, how do we take steps to make sure that they, for example, can access their paystub to make sure that they're being paid correctly, that they can see, you know, the postings that are in the break room, or all the kinds of things that make employees aware of their rights or allow them to evaluate things like are they being paid fairly.

Are they aware that they might be entitled to overtime pay, all those kinds of things in the workplace itself.  Can you share your thoughts on that?

MS. KEGLEY:  Right.  And that could be, you know, sometimes people may not even realize that there is an issue.  You know, they're just going about their day.  They may not even know that something improper is happening.

So you're right, how do we educate them and I think that's just a matter of all of -- how do I say this, like ways that we can present your advice.  You know, it's just the education aspect of it.

I think peer support from other employees with disabilities, and that's a great question.  I think that's one that we definitely still need to be working on.

COMMISSIONER DHILLON:  I agree.  I think it's an issue that transcends a lot of different areas within the workplace.  But as one of the panelists earlier today said, you know, one in seven people -- one in seven Americans is functionally illiterate.  Whatever the cause.

And so it is something that crosses all categories of vulnerable workers.  And I think that the agency needs to think about how do we reach those people most effectively, because if they can't read at a certain level, they become very isolated.

I think both in society, but then also within their workplace.  And how do we address that isolation so that they are not subject to exploitation.

MS. KEGLEY:  Exactly.

COMMISSIONER DHILLON:  Well, and then I took note of your remarks about our Atlanta office.  I'm very sorry about that and I'm sure that there will be follow up to make sure that that situation is addressed.

But obviously, if you or folks in your organization ever do have problems accessing EEO services, you are certainly welcome to reach out to my office, and I will do whatever I can.

MS. KEGLEY:  Thank you.

COMMISSIONER DHILLON:  But it was very nice speaking with you.  And I think my time is just about up.  So thank you.

CHAIR BURROWS:  Thank you very much.  And now we go to Commissioner Sonderling.  You're recognized for ten minutes.

COMMISSIONER SONDERLING:  Thank you.  I'll stay with you really quickly, Ms. Kegley.  So are you back?

MS. KEGLEY:  Yes.

COMMISSIONER SONDERLING:  Okay.  The – you know related to accommodations people with disability to not only thrive in the workforce, which was, you know, some of the things that were just discussed, and also enter in the workforce as well.

As everyone on this call knows, that are laws apply to applicants as well as those who are employed.  So my question to you is, you know, where are we now with reasonable accommodations when it comes to the undue hardship analysis that employers have had to go through in the past?

We know that with technology and all these different types of new accommodations, and a lot of them now have come post-pandemic, it's a lot easier for people, and potentially cheaper for employers to offer accommodations for the interviews and while they're working.

So I'm curious from your perspective, where we are with that undue hardship analysis and the pushback you've seen historically from employers, and if that's changed, that's the first part of the question.

The second part of the question is how can the EEOC now work with employers, with employee advocates, and applicants, to let them know that that analysis may have now changed with the new technologies coming in for people with all different types of disabilities?

MS. KEGLEY:  Right.  So I have not seen that many undue hardship defenses.  I see more that the applicant shows, where the employer gets that inkling that the employee might have a disability and they kind of shut down the process.

And they'll say the position has been filled, or you didn't get an interview, that type of thing.  But the undue hardship, I think that, as you said, technology is making everything a lot more accessible.  It's not as cost prohibitive.

And I think just continuing to let employers know that they do have a duty under the Americans with Disabilities Act to provide reasonable accommodation, and really very few employers are going to be able to claim that undue hardship.

COMMISSIONER SONDERLING:  And how has that changed during the pandemic and post-pandemic from your perspective, for people with disabilities?

MS. KEGLEY:  For people with disability to --

(Simultaneous speaking.)

MS. KEGLEY:  -- accommodation?

COMMISSIONER SONDERLING:  Yes.  And then also with the remote work, and a lot of the different technologies that are out there.

MS. KEGLEY:  Yes.

COMMISSIONER SONDERLING:  You've seen less claims, or more claims, or different kind of claims related to, you know, a group that has historically struggled for whether it's transportation or so many other issues, for entering the workforce.

Now, with remote work, what are you all advising on?  What changes have you seen in the marketplace?

MS. KEGLEY:  Yes.  We've seen a slight increase in claims.  We had a couple of cases where a person was working from home during the pandemic, and the office reopened, and the person's doctor had advised them not to go back into the office because of their immunocompromised system.

And the employer was just not having it.  They said the employee needed to come back.  And so we were able to have a workaround where the employee got a different job that did not require them to come into the office.

But they were able to just work in a different position that allowed them to work at home.

COMMISSIONER SONDERLING:  Understood.  And then before I move on, you know, I know you mentioned 14C and obviously, that is an issue that only Congress can change.  You know, that program has been around for a while and continues to be around.

But from a perspective, you know, from our jurisdiction, because we don't have jurisdiction over 14C, within the shelter workshops or any of the areas that you've dealt with through your advocacy group, as you alluded to in your opening statement, have you seen any other actual claims related to anything the EEOC enforces?  Such as disability discrimination, gender discrimination, related to the 14C program?

MS. KEGLEY:  I'm reading the captioning.

COMMISSIONER SONDERLING:  Oh, it's okay.  I'm sorry.  I'll slow down.

MS. KEGLEY:  Okay.  We have not.  Okay, so the people in the 14C sheltered workshops oftentimes are not aware that they do have the right to make minimum wage.  And to the extent that the EEOC could partner with the Department of Labor to phase out the issuing of 14C certificate, that would be great.

But the thing is, is that the sheltered workshops are only people with disabilities working there.  And the only people without disabilities are staff.  And there's definitely segregation happening and there's also accommodations that are not being provided to the worker in the workshop, who need accommodations to do those jobs.

COMMISSIONER SONDERLING:  All right.  I want to hear, I've been to many sheltered workshops, and I've seen it with my own eyes.  But from our perspective, in issuing the certificates, you know, that's again, beyond any of the federal agency's jurisdiction.

That's something for Congress.  But the -- where it comes to the EEOC is if, yes, they are -- I agree with you, there's obviously a disability there.

But -- and outside of the wages, putting that aside, you know, the employer still needs to accommodate them if necessary.  I'm just curious if you've seen that specifically in these programs where they're still not getting their rights under the American Disabilities Act, not separating the Fair Labor Standards Act.

MS. KEGLEY:  Yes.  Yes.  We have gone to the ITM program within the state within the last two months, we have been to ITM.  And there are definitely accommodation needs in all of them.

COMMISSIONER SONDERLING:  Okay.  Well, that's something, certainly, we can factor in, you know, with our strategic enforcement plan, something we should look into.  So thank you for bringing up those issues and your time.

I want to switch to Ms. Guizar quickly with my remaining time.

MS. GUIZAR:  I'm here.

COMMISSIONER SONDERLING:  Hi.

MS. GUIZAR:  Hi.

COMMISSIONER SONDERLING:  So -- there you are.  Okay.  You know, we talked about, you know, we've talked about a lot of things that are obviously outside of, again, our jurisdiction, as far as wages, and not even legal, they're just, you know, whether it's things that you advocate for and obviously, employers during union negotiations may take a different provision, such as wages and benefits, et cetera.

Because you are there generally with a lot of small employers, major employers, across the board, I mean, you see every -- almost, outside of construction, you're seeing almost every single industry.

Do you have examples related to being at the bargaining table with employers related to the laws we enforce here, which are not controversial, it's illegal to discriminate on these, it's illegal to pay men and women differently or based upon any of those characteristics.

So I don't think when it comes to our areas, there's much debate in the collective bargaining or in the union negotiations, when it comes to our laws and the policies enforcement and reporting mechanisms.

But what have you seen good where unions and employers have been able to work together to further the goals of our agencies?

MS. GUIZAR:  I think in one area where I've seen furthering the goals of the agency is with respect to sexual harassment in the workplace, and I described the janitorial industry because one, that's where it's prevalent in addition to many other industries.

But it's also an area where employers and local unions have come together to bargain expanded language and policies and procedures for reporting sexual harassment.

COMMISSIONER SONDERLING:  Right.

MS. GUIZAR:  Or additional training on sexual harassment, holding employers and supervisors accountable so that it's not the victim who's being moved to a different location, but instead, it's the perpetrator.

So I'd say in that area, I've seen more collaboration and expansion on rights and education, really, for workers.

COMMISSIONER SONDERLING:  Right.  And you know, a lot of the conversation this panel's been around state laws and federal laws when there are no more restrictive state laws, but certainly a way, and it sounds like that's already happening, is for employers and unions, you know, that are in collective bargaining to negotiate and work on some of these more robust reporting requirements.

And it seems like in certain cases, that might be happening, and it's something where employers and unions can work together.  And I think, you know, any time there's consensus between groups with different interests, I think that information is very helpful to the EEOC to make it less controversial that we can move forward and provide guidance to all sides of the parties.

So thank you very much for that insight.  And thank you for all the witnesses in this panel.  And that's my time.  Thank you.

CHAIR BURROWS:  Thank you.  And we'll go now to Commissioner Lucas for ten minutes.

COMMISSIONER LUCAS:  Thank you, Chair Burrows.  And thank you to all of the witnesses for participating today.  I know we're getting close to the end of our time.  But I'll try to target my questions accordingly.

I wanted to go to Ms. Kegley, because I had some additional questions for her.  Give her a chance to get on the screen.  Thank you again for appearing when your colleague wasn't able to appear.  And I really appreciate your perspective.

Disability rights are a particular interest of mine as one of the rare commissioners with a disability in the history of the commission.

We've seen quite a few cases in the last couple of years since I've been on the commission involving deaf or hard of hearing workers, and one theme that I've noticed is that often, there are some fairly low cost technologies to accommodate hard of hearing workers, that many employers don't seem to be aware of.

Some that I wasn't even aware of.  And so there seems to be a real gap in terms of awareness, especially as technology has changed the cost of some of those accommodations.

So I was hoping you could talk maybe about that, both specifically for hard of hearing workers, but also for workers with disabilities in general.

Are there resources or ways that we could do a better job of informing employers or even our own employees, as we evaluate cases and work through investigations about the kinds of available accommodations there might be, particularly in areas where technology has significantly improved the availability of accommodations or cost, decrease the cost of those accommodations.

MS. KEGLEY:  Yes.  Technology really is moving rapidly.  And I think the impact that people with -- people who are deaf and hard of hearing do have these options available to them, it's just a matter of the employer providing them.

So for example, if an employer -- employee is only using American Sign Language, and they have a staff meeting, and the employer does not provide an interpreter at the staff meeting, the employee misses out on a lot of important information.

But that can be a quick and easy fix.  If you have a cell phone, the employer can have a video interpreter available by video, and so you don't have to -- and sometimes, the remote video interpretation is more cost effective than having a live interpreter.

And so yes, you're right.  It's just how do we get these employers to know it's not going to break the bank to make these accommodations and they have to, legally.

So I think it's just, yes, we have a -- in Georgia, we have a deaf and hard of hearing agency.  All states probably have a deaf and hard of hearing agency that would have a technical assistant program that knows about all of the technology available, and so it could be some kind of informational session to the EEOC staff, and then somehow letting employers know, hey, you know, there's all kinds of technology.

I mean, I was talking with somebody the other day who they -- somebody who was blind, and he wanted to know how to be able to navigate a warehouse, and the employer is going to provide him with a headphone type thing that is going to talk to him and say, okay, turn left here, turn right here, it just blew me away, the technology that's out there.

COMMISSIONER LUCAS:  Thank you.  Yes.  I think that because of a lot of employers think, well, if I have to have an interpreter of any kind come here in person, it must be some exorbitant amount of money.

You get a lot of misconceptions about whether or not it would actually rise to an undue hardship, and it's just a huge hurdle that if you could remove that misunderstanding, we could help better integrate a lot of people into the workplace.

It's just been a theme in a lot of litigation we've authorized recently.  Following on Commissioner Dhillon's questions about helping people who are actually in the workplace understand their rights, I wonder what you thought about the possibility of having perhaps a video on loop in a workplace, if the EEOC, for example, or other government agencies created videos that were similar to the EEO postings you might see in the break room, but on a video and had ASL split screen playing on a loop, periodically or perhaps every once in a while, if that might be another way to increase workers' awareness, whether they have a disability or are hard of hearing, or for those who are just not as literate or have no literacy, if that might be an idea.

MS. KEGLEY:  I think that would be a great idea, and we can definitely push it out on all of the social media platforms.

COMMISSIONER LUCAS:  It's great to brainstorm things like that.  I know that that's 100 percent the goal of this listening session, but I do think anytime we have a chance to hear from stakeholders, that kind of thing is so helpful and it's something that I'd love to follow up with you on and talk with others because I think that we're missing a lot of people who discrimination is happening, but since they don't even know that it's an issue, because of whatever barrier that they're facing, we don't get the charge at all.

And I do want to echo my colleagues concerns about what you've experienced in our Atlanta office.  I'm sure someone will follow up with you about that, because that is troubling to me as well.

I wanted to also ask you a question about how you've seen -- I think Commissioner Sonderling touched upon this a little bit, but areas where COVID, in particular, has posed issues related to disability discrimination.

So whether it's the changing workplace, for example, increased Zoom and not having accommodations related to that, or ADA related requests for an exemption from a vaccine mandate, or from another COVID, like, for example PPE protocol, masking.

COVID related claims that you've seen involving disability discrimination.

MS. KEGLEY:  I think people with intellectual and development disabilities before the pandemic, had jobs, they were going to their workplace, you know, living their best life.

And then the pandemic happened, and they were sent home, and then they have not been able to reenter the workplace.  And that's what we're trying to drill down as to why not.  Is it that they don't want to, that they got used to being at home and doing nothing.

Or is it that the family has -- because some parents, when that happens, the person will go on Social Security and they'll get SSI or SSDI.

And the family has come to rely upon the person obtaining that SSI or SSDI check, and the family is afraid for the person to go back to work because they don't want the benefits to be decreased because they're relying upon that as a source of income.

So there's different theories about why people with intellectual and developmental disabilities are not reentering the workforce.  But that is a big thing as a result of the pandemic.

COMMISSIONER LUCAS:  Thank you, that's very helpful.  It is troubling to me that so many years after the ADA, we do have a serious gap in terms of workforce participation for workers, and I'm just not satisfied with the explanation that they just don't want to be part of the workforce.

So yes, it gets -- it's much more multifaceted, and I hope we can continue to find ways to get people back to work, or into work for the first time.

MS. KEGLEY:  Right.  Thank you.

COMMISSIONER LUCAS:  Thank you.  I think I'm wrapping up time.  I know we're also getting close to when we had intended to end, so I'm going to cede my time to Chair Burrows.

CHAIR BURROWS:  All right.  Thank you.  And I'd like to go now first to Ms. Guizar.  Thank you for your work with SEIU, which you know, I wanted to ask you about some of what you said with respect to the janitorial workers and other low wage workers.

One of the things that I think is always the case with respect to folks coming forward, and certainly with this population as well, is that there's just fear about moving forward.

And so the question I have for you, particularly now as we're thinking through how we can be creative about our outreach, is if you have any suggestions for how we can overcome that as we do that.

And you know, we've also had a challenge of being really, like everyone else, affected by the pandemic, and have had relatively less in person kinds of outreach efforts.

And so we're trying to think through that as well.  So I'd love your thoughts with respect to what we can do to help do the kind of outreach that is creative, that reaches low wage workers, that creates that confidence.

And any suggestions you have would be very welcome.

MS. GUIZAR:  Thank you so much, Chair Burrows.  I think in addition to what I said earlier with respect to social media, many workers in industries such as fast food and janitorial, are immigrant workers, different languages, foreign workers.

And so I think Spanish or other ethnic radio, media, TV, I think would be important in terms of outreach.  In addition to social media.  And I also would just want to reiterate, I think what I said earlier, and perhaps what one of my co-panelists also shared is part of the fear is this threat of immigration status.

Whether the person is documented or undocumented, that threat continues, not only to the individual who works there, but perhaps family members.  And I think coming up with a clear policy and process on the issue that, as we know, immigration status is not relevant to the investigation or to liability.

But I think it is something that definitely results in not only chilling workers from coming forward, but it also instills fear.  And so I think coming up with a process for ensuring that workers understand, that immigrant workers understand that they -- that even if they do come forward, and suffer retaliation, that there are processes and mechanisms in place to be able to provide some sort of relief.

So creating a process similar to the DoL's, or similar to the NLRB's, where there is a process where folks can come forward and that they know that it exists, and that that is also put out to nonprofit organizations, worker centers, other CBO's, as well as labor unions and other advocates.

I think that that would go a long way in terms of helping to ensure that workers come forward and help with that fear of retaliation or worse related to status.

CHAIR BURROWS:  Thank you.  And I'd like to go to Vidhi Bamzai, if you want to chime in, and particularly with respect to outreach.  And regardless of what the substance is, sometimes what I've found is that it depends if -- regardless of what your message is, how good it is, or effective it could be, if you don't reach people where they are, it will simply not be heard.

So I'm curious if you have, in addition, to add any thoughts about how we could be creative in our outreach, and the areas in which that's particularly needed.

MS. BAMZAI:  Absolutely, thank you so much.  You know, the first thing that comes to mind with that question is some of the barriers we have experienced with language access.

Language access is certainly one of the key ways that we think the EEOC could really engage with a lot of workers.  From personal experience, I mentioned that I'm based on Jackson, Mississippi.  I worked with a lot of folks who were impacted by the ICE raids in 2019.

And that was a -- in that experience, we actually learned that a lot of our workers in Mississippi are from Guatemala and not only are they from Guatemala, but many of them are indigenous Guatemalans.

So many of the workers speak indigenous Guatemalan languages, which poses a unique set of circumstances in which we ran into a lot of issues with a lot of clients and workers, and ensuring that we're able to get -- communicate with folks.

So language access is certainly something that we have run in -- we think that the EEOC could certainly prioritize.

Another area, in terms of really connecting with workers, is after-hours access.  A lot of workers, due to their -- due to the shifts that are at different plants and factories, are unable to keep -- make appointments and keep appointments during traditional working hours of 9 to 5.

So we do run into issues there, working with the EEOC.  So trying to be a little bit flexible or findings ways to be able to meet workers without cutting into those kind of necessary work hours that they have, is certainly something that we think a lot of our -- the communities that we work with would benefit from.

CHAIR BURROWS:  Can I follow up on that just so I understand --

MS. BAMZAI:  Sure.

CHAIR BURROWS:  -- the suggestion.  Because as you say that, I'm also -- it's related to another interest of mine, which is we've heard from a lot of civil rights organizations about a digital divide, and some of the challenges there.

And so when you talk about after-hours access, what, you know, you don't have to give me an exact percentage, but are we able to reach folks electronically?  What's the, you know, sort of access to broadband like for folks to do, you know, a Zoom call like we're doing, or a Teams call?

MS. BAMZAI:  Sure.  That's a really good question and thank you so much for asking that question.  You know, most of our clients when we do have -- when we do talk to clients and when they are -- they're communicating with folks, what we have done in the past is we have set up forums and sessions through advocates who work on the ground with communities.

So if individual workers do not have access to internet or broadband, or things of that nature, oftentimes our advocate partners can set up facilities and settings where those can be addressed.

Particularly for group settings, for advocacy sessions, or listening sessions like this, those can be really effective.  For individual engagement with workers and things like that, typically, you know, a lot of our clients use Whatsapp and other programs like that on their cell phones.

And we typically have success talking to folks like that, and we can work with them.  But we tend to defer to on the ground advocates and community organizers to work to ensure that folks on the ground, workers do have access to the kind of technology capability that will make these kinds of sessions successful for everybody who's involved.

CHAIR BURROWS:  Thank you.  That's very helpful.

MS. BAMZAI:  Thank you.

CHAIR BURROWS:  Yes.  So I wanted to go to Ian Anderson next.  With respect to some of the concerns that you have raised, and I know that you also were thinking about geographic differences and distinctions to some degree, and also what the state and local protections have been.

I wanted to sort of drill down a little bit.  And you mentioned in particular, the forms of harassment.  Are those things that differ, you sort of see, by industry or geography, or is that really a problem that you're seeing across the board?

MR. ANDERSON:  Yes, again, it's a little hard.  I'd be happy to sort of do more disaggregation and get you more specific numbers if that would be helpful, following the call.  But you know, I would say it's -- as far as breaking the specific types of discrimination down, I think, you know, issues around misgendering, outing of people without their permission, these are just extremely pervasive and widespread.

I think managers not responding to or creating accommodations for workers, again, pretty persistent and widespread.  I would say perhaps I can note a trend of some of the more sort of I guess egregious forms of harassment and discrimination, such as like you know, sexual or physical assaults, tend to perhaps be more concentrated amongst like lower wage workers.

But again, I would say even things like very serious adverse workplace decisions, like firing or demotion, or you know, moving someone to a different location, these tend to cut across industries and across geographies.

So to that extent, that's a little difficult to break down.

CHAIR BURROWS:  I appreciate that.  And yes, we can follow up.  I guess the other question I had for you is, you know, you mentioned misgendering and misuse of pronouns, and it -- I just wanted to address directly and pull apart what you mean by that, because obviously, you know, at least you can imagine that people will get confused out of habit, that sort of thing.

Is that -- how do you pull that apart?  And you know, sort of look at what could be really unlawful or intentional, as opposed to you know, people forget or misspeak, or something else.  Right?  That doesn't rise to that.

MR. ANDERSON:  Yes, of course.  You know, and I think that people do experience the gamut of that.  Right?  In some cases, it may be someone has recently disclosed a new name or pronoun, and coworkers need time to adjust, and I think most reasonable workers understand that, as difficult as it may be, to you know, still face, you know, misgendering or somebody calling them the wrong name.

I think in general, there's an understanding.  People need that kind of adjustment time.  You know, we still see a lot of reports of either someone calling someone by the wrong pronoun in the context of an off-color joke, or in the context of an invasive question, which makes it clear that, you know, the person is acting with, you know, the intent to intimidate someone or to, you know, call attention to them, or to disclose their trans status without their consent.

So there are many instances like that.  There's also many instances of someone simply refusing to, you know, take polite reminders to heart.  Right?  And so someone continuing to misgender someone or call someone by the wrong title or name for a long period of time, even with repeated reminders, to our understanding, that would still be blatantly discriminatory, regardless of sort of the intention behind it.

They're not making any efforts to accommodate the worker, to recognize their identity, it kind of amounts to the same thing and creates a very hostile work environment for them.

And again, this can come from fellow employees, this can come from managers.  You know, I think in some cases, trans workers have made an effort to try to be more proactive.  Right?  And sort of sharing their pronouns and their gender with people they work with or with customers or clients, if they're in a sort of, you know, customer/client facing position.

And in those instances, trans workers have also faced pushback.  They ask for something as simple as sharing their pronouns on their name badges, for instance, and employers have refused those requests.

So again, even in cases where trans workers have made a good faith effort to engage with their coworkers, and their clients, and their bosses, they still sometimes face a lot of pushback, which I would, you know, again, argue is creating a really hostile workplace and making it very difficult for them to work, regardless of the specific intention of their coworkers, or their supervisors.

CHAIR BURROWS:  Okay.  Thank you.  And unfortunately, I'm out of time.  Ms. Kegley, I absolutely do want to follow up with respect the accessibility issues that you raised with respect to our portal.  So we'll be doing that.

And with that, I guess we have pretty much concluded today's session.  I really am so grateful to each and every one of you for your powerful testimony today and your insights on how the commission can better address the needs of vulnerable workers, which have really been invaluable for the process that we have now before us on our strategic enforcement plan.

So as I mentioned at the outset, today's session is the second listening session to hear public input on the EEOC's strategic enforcement priorities.

Our third and final listening session will take place Thursday, September 22nd, beginning at 10 a.m.  And that session will be in person, here in EEOC's headquarters in Washington, D.C.

The public is welcome to attend in person or virtually, and you can find more information about how to access that session at EEOC.gov.

We also welcome all stakeholders and interested members of the public to provide written input to the commission on our strategic enforcement priorities.  You can submit written input to the commission by emailing us at sep2022@eeoc.gov.  That's also on our website.

And in closing, I'd just like to recognize the many EEOC staff who worked to make today's session possible.  I'd especially like to thank the Office of Information Technology, the Office of Communications and Legislative Affairs, and the Office of the Executive Secretariat.

And of course, I'd like to acknowledge the vice chair, and each of the commissioners, as well as their staffs for their support and their contributions.

And finally, many thanks to the members of the public joining us virtually across the country for this important conversation.  We'll hold the commission meeting record open for an additional 15 days and invite all interested parties to submit written comments on the subject of today's listening session.

You can learn more about how to submit comments on our website.  And again, that's www.eeoc.gov.  And without -- with that, our meeting is adjourned.  Thank you so much.

(Whereupon, the above-entitled matter went off the record at 3:16 p.m.)