The U.S. Equal Employment Opportunity Commission

Commission Meeting of April 17, 2007

PRESENT:

NAOMI C. EARP, Chair
LESLIE E. SILVERMAN, Vice Chair
STUART J. ISHIMARU, Commissioner
CHRISTINE M. GRIFFIN, Commissioner

ALSO PRESENT:

PEGGY MASTROIANNI, Associate Legal Counsel
BERNADETTE B. WILSON, Program Analyst

INDEX

Announcement of Notation Votes

Motion to Close a Portion of the Next Commission Meeting

Perspectives on Work/Family Balance and the Federal Equal Employment Opportunity Law

Introduction

Panel I

Panel II

Panel III

Headquarters Project Management and Relocation Services Contract

Motion to Approve the Headquarters Project Management and Relocation Services Contract

Motion to Adjourn

PROCEEDINGS

CHAIR EARP: Good morning. The meeting will now come to order.

In accordance with the Sunshine Act, today's meeting is open to public observation of the Commission's deliberation and voting.

At this time I'm going to ask Bernadette Wilson to announce any notation votes that have taken place since the last Commission meeting.

Ms. Wilson.

MS. WILSON: Good morning, Madam Chair, Madam Vice Chair, Commissioners. I'm Bernadette Wilson from the Executive Secretariat.

We'd like to remind our audience that questions and comments from the audience are not permitted during the meeting, and we ask that you carry on any conversations outside the meeting room departing and reentering as quietly as possible.

Also please take this opportunity to turn your cell phones off, or to vibrate mode.

I would also like to remind the audience that in addition to the elevators, in case of emergency there are stairways down the halls to the right and left as you exit this room. Additionally the restrooms are down the hall to the right.

During the period April 6th, 2007, through April 16th, 2007, the Commission acted on one item by notation vote, and that was to approve the 2007 EEO-4 Survey.

MS. WILSON: Madam Chair, it is appropriate at this time to have a motion to close a portion of the next Commission meeting, in case there are any closed meeting agenda items.

CHAIR EARP: Thank you, Ms. Wilson.

Do I hear a motion?

COMMISSIONER ISHIMARU: So moved.

CHAIR EARP: Is there a second?

VICE CHAIR SILVERMAN: Second.

CHAIR EARP: Any discussion?

Hearing none, all those in favor?

(Chorus of ayes)

CHAIR EARP: Opposed?

(No response)

CHAIR EARP: The ayes have it, and the motion is carried.

It's with great pleasure that I welcome you to this Commission meeting to discuss and gather information on the topic of balancing work and life.

I want to acknowledge and thank the two offices that put today's meeting together, Vice Chairman Silverman and Commissioner Ishimaru worked together to make it happen.

We have a wide range of views. I want to thank you again, Vice Chair. Thank you, Commissioner Ishimaru.

Many people would say that work and family are the two most important aspects of life. They certainly take the most time, so it's only natural that balancing these two crucial areas of life are a major ongoing concern, collectively to our society as well as on an individual level. Working all that out can be very, very challenging. By the time we send our kids to college, we rejoice that balancing work and family seems at least for a little while almost over. We breathe a sigh of relief as we think we have a little time before the issues of grandkids and the issues of elder parents present itself.

We cannot do this meeting on this day on this topic without a moment to recognize the tragedy that happened yesterday. I would ask that we take just a moment in silence for all those families whose lives have been changed forever.

(Moment of silence)

CHAIR EARP: Our hearts so go out to them.

This topic of work and life balance is hot right now. Employers are concerned, individuals are concerned, advocates are concerned. It's been a topic for a number of years. It comes with a number of perspectives, and many careers and jobs have their own particular concerns.

While on the one hand businesses may be concerned about undue absenteeism as individuals try to balance their family responsibility, some businesses have reported a cut actually in the turnover rate of losing employees just by having flexible policies.

Advocates for years, if we just look as an example at the law, have advocated abolishing the billable hour. There are probably a lot of young associates who think that would be a good idea also. Because that culture creates an environment based on long hours, clearly not conducive to family or any life after work.

Likewise, science and academia often has a culture of publish or perish. You can take a sabbatical to do research or to study or to teach, but you may not be allowed to take one for family matters. And despite the difficulties encountered in professions, wage earners have an even tougher time. This is a topic, as I've said, with many perspectives and many challenges that are unique to particular jobs, professions, and industries.

Today we'll hear from experts offering a broad range of views, and also discussing how concerns with balancing family and work life intersect with the laws that we enforce here at EEOC.

We will hear from economists, attorneys, academicians, and our own New York Regional Attorney who not only has professional experience but personal experience with this balance as well.

We will now have opening statements from the Commissioners, starting with the Vice Chair.

VICE CHAIR SILVERMAN: Thank you, Madam Chair.

As the Chair acknowledged, this is a particularly somber day for this nation. My thoughts and prayers are with the students, the families, and the friends of Virginia Tech.

I'd like to welcome all of our speakers this morning, and I particularly want to thank those of you who braved yesterday's ominous winds and rain to share your perspectives with us today. We were at a vigil in my office checking the trains, planes and schedules to make sure you could all make it, so I'm pleased to see that you're all here and accounted for.

I'd also like to welcome the many people joining us from advocacy groups in the business community, as well as the staff attending today's meeting here in Headquarters, and those watching from the field. And I'd like to thank Commissioner Ishimaru and his staff for collaborating with my office to cochair this meeting.

Commissioner Ishimaru and I have long shared a deep interest in work family issues, and it's truly gratifying to have such a distinguished panel of experts here to share their views and help the Commission as we try to grapple with the EEOC's role in work-family conflict. Certainly we're not the first to focus on this issue. The challenge of balancing work and family has received an enormous amount of attention in the past few years. It seems nary a week goes by without an article or a news report on this very topic. In fact, a whole new vocabulary has emerged. We talk about the sandwich generation to describe those of us who care for both young children and elderly parents, and we hear about a maternal wall that may act as a barrier to the career advancement of women with children. And the term, caregiver, has been given a new meaning. When we use it today we're not referring to childcare providers or home health aids. Instead we're talking about workers who hold jobs while also caring for children, aging parents, and/or other family members. And there is the acronym FRD, which stands for Family Responsibility Discrimination. Our distinguished third panel will focus on this.

Why is there so much attention on work-life balance? The answer seems obvious to me. I believe it's because this issue hits close to home for so many of us B pardon the pun.

In order to juggle the increasing demands of work and family, many Americans utilize a host of creative ways to make it work everyday. Of course women have traditionally borne most of the care giving responsibilities. But with more and more women joining the workforce, what once were individual issues really have become societal issues, and as a society we really need to find a way to make it work. Fortunately, many employers have recognized employees' need to balance work and family, and have responded to their employees' needs in very positive and creative ways. Many have developed family-friendly policies such as generous leave benefits, comp time, telecommuting, onsite daycare, lactation rooms, flexible schedules, job sharing and the like.

Policies such as these can be a win-win for everyone. They enable workers to fulfill their work and family obligations, while at the same time increasing employee morale, attention and productivity. Unfortunately it is not working everyday for other folks. Not all caregivers work in such hospitable environments. In fact, we hear from caregivers who face barriers, stereotyping, and unequal treatment on the job, and that's why we're here today. This meeting gives the EEOC the opportunity to examine work-life issues through the lens of the laws that we enforce, to help us determine how far the federal anti-discrimination laws reach into these issues.

Now I think we can all agree that there are some actions that clearly violate anti-discrimination laws. For example, asking all female job applicants but not male applicants about their child-rearing plans and basing hiring decisions on their answers; or telling a pregnant employee that she's being fired to spend more time at home with her children, and that she'll be happier there; allowing women to take leave to care for an aging parent, but not allowing men to do so too; or refusing to promote a man whose wife has MS based on the unfounded belief that his wife's illness will impede his ability to do the job.

These examples seem fairly clear, but what about the situations where the employer's actions does not appear to be directly related to gender or disability or some other protected class, but rather to caregiver status, is that enough? This is an emerging area of law, and there are so many unanswered questions about the extent to which federal EEO laws apply. Our agency's challenge is to determine how the statutes EEOC enforces should apply to work-family conflicts that seem to straddle the line between lawful and unlawful discrimination.

I hope that through this Commission meeting today our witnesses will be able to shed some light on where that law may be drawn. By doing so we ensure that our enforcement efforts may assist workers who face unlawful discrimination while also giving employers guidance as to their responsibilities in this area.

And I look forward to hearing from the speakers, and continuing this dialog in the future, and I want to thank the Chair for holding this very important meeting today. Thank you.

CHAIR EARP: Commissioner?

COMMISSIONER ISHIMARU: Madam Chair, thank you. I too join my colleagues in expressing my sympathies to the families affected by what happened yesterday in Blacksburg. It's a profound tragedy that will have lasting effect.

When I was getting ready to come this morning to work, to the meeting, and as we were trying to scoop the kids out the door to send them to school, my wife who was scooping her way out the door to get up to Newark for a court hearing said, "What are you doing today at work?" I said, "I'm going to a hearing on work-life balance." And she said, "Well good for you. I hope you can make a difference." I hope B she said she was glad that the government was starting to look at this. And as the Vice Chair pointed out, there has been a lot of press on this, a lot of things written in recent years, but as far as I know this is the first time in many years that a federal agency, a federal body, has started to look at these issues. It may have happened in the >90s to a certain degree, but in recent years certainly this has not been on the plate of a government agency. And I think we are well suited to see how we can play in this area, and I'm delighted that the Chair called this hearing. It's been a pleasure to work with the Vice Chair in planning it, with her and her staff, as well with my staff. It was a bipartisan and a cooperative effort, and I certainly appreciate that.

Today's meeting centers on the intersection of caregiving responsibilities and intentional discrimination, and when that violates the statutes the EEOC enforces.

I'm especially pleased to have Professor Joan Williams with us today. She created the roadmap showing us how discrimination against caregivers can be illegal under the set of laws we currently have.

When I speak about discrimination against caregivers, I frequently get one of three reactions: first, that this is not an EEOC issue; second, that this isn't a man's issue; and third that this issue is about upper class women. And I hope that today's meeting will go a long way in dispelling these three myths.

As the cases in our speakers' statements show, courts are finding that employment discrimination against a woman because she has a child, is going to have a child, or may have a child, can be a violation of Title VII, and thus, an EEOC issue. Moreover, discrimination against women because of their status as mothers is a key reason why women do not get promoted or get hired, another EEOC issue. Indeed, some women are never stopped by the glass ceiling because bias against caregivers prevents them from ever getting that high.

And discrimination against caregivers is a man's issue for several reasons. First, men face discrimination in the workplace when they dare to defy stereotypes about how mothers and fathers act and should act.

Secondly, male coworkers, employers, supervisors, lawyers and judges, need to learn about the issues of caregiver discrimination in order to prevent it.

Finally the media would certainly like us to believe that work-life balance is an issue for upper class white women only. But the data and information from our panels will illustrate, women with children work in all kinds of professions, at all pay levels, and all types of women experience discrimination because of their care giving responsibilities.

And of course it is exactly women at the lowest income levels who can least afford to lose a job or pass up a promotion.

So I'm looking forward to the panels today, and I want to thank the Chair again for calling the hearing. I think as we've talked about with a number of issues we've raised recently, it's a new century. And we are trying to grapple with the new challenges of the new century, and certainly this is one of those.

And I thank you, Madam Chair, for calling the meeting today.

CHAIR EARP: Commission Griffin?

COMMISSIONER GRIFFIN: I too want to thank Chair Earp for holding this Commission meeting focusing on this area of interest and concern to the Commission. And I'd like to note that this is the first Commission meeting that we've ever held on this particular topic.

I want to thank the Vice Chair and Commissioner Ishimaru and his staff for bringing together all of these great speakers who we will hear from this morning. They've selected an excellent panel of people who will address the work and family balance issues and the implications for the EEOC and enforcement of Title VII and the Equal Pay Act.

I want to thank our panelists for taking the time out of your busy schedules to help educate us about work-life balance and federal antidiscrimination law. This is I think a critical issue on how to really create a more equitable workplace for women. Women have been entering the work force in increasing numbers. We're about equal I think at this point with men, and yet women really do bear the greatest caregiving responsibilities in the home. Women not only have greater childcare responsibilities, but as part of that sandwich generation, they frequently have the added responsibility of caring for elderly parents or relatives.

In my previous position as the Director of the Disability Law Center, almost 40 percent of our work was providing advocacy for children with severe disabilities. And the majority of those cases, it was mom who was the caregiver and the predominant advocate for those kids.

I look forward to hearing more about these issues from our panelists. We've seen a dramatic increase in the number of pregnancy discrimination charges filed in recent years. And the Agency has filed lawsuits on behalf of women for a wide range of discriminatory acts associated with women's roles, as mothers and caregivers.

I@m pleased to note that Elizabeth Grossman from our New York District Office will be able to talk more about EEOC's charge and litigation experience in cases involving discrimination against women in the workplace. I think it'll be valuable to hear about the wide range of discrimination experienced by many women because of the conflict or perceived conflicts between the demands of home and work life. I'm sure our third panel will offer many thoughtful insights about the guidance EEOC can give to employers to ensure that they're in compliance with Title VII and the antidiscrimination laws enforced by EEOC.

I should note that some employers have gone beyond the outdated concept that there is inherently a conflict between work and family life. While laws such as the Family and Medical Leave Act require some employers to accommodate certain family responsibilities of workers, some other employers are voluntarily introducing really family friendly policies.

Other employers have introduced policies to help cover the costs associated with dependent care, thereby really allowing workers to spend more time on the job because they have that dependent care that they can afford.

Some employers are adopting such family friendly policies as strategic business tools for improving recruitment, retention and productivity. Job growth is outpacing population growth. The retirement of the baby boomers means that over the next 10 years, the predictions report there will be 10 million less workers available to meet the job demand. As employers face increasing demands to recruit and retain a talented workforce, I expect more will adopt policies that lessen the tension between work and family life. Family friendly workplace policies have been shown to increase the engagement and commitment of workers and reduce costs due to lost productivity, illness, medical expenses, and health care costs.

So I look forward to hearing from each of our three panelists this morning, and welcome. Thank you.

CHAIR EARP: Thank you, Commissioners.

I would now like to have the Vice Chair and Commissioner Ishimaru provide an overview of the panel and introduce the experts.

VICE CHAIR SILVERMAN: Today's meeting will have three panels discussing different aspects of work-life balance, and how these issues intersect with the laws enforced by the EEOC.

The first panel will lay the framework for our discussion by providing demographic data on working parents; the employment experiences of caregivers; and the unique issues facing women of color.

The second panel will discuss EEOC charges and litigation that addresses pregnancy and caregiver issues under Title VII and the Americans with Disabilities Act.

And our third panel will discuss the application of Title VII and the ADA to discrimination against caregivers in the workplace.

CHAIR EARP: We would now like to welcome the first panel. Commissioner Ishimaru, would you introduce them, please?

COMMISSIONER ISHIMARU: Thank you, Madam Chair.

On the first panel today we will hear from Heather Boushey and Jennifer Tucker. Dr. Boushey is the Senior Economist at the Center for Economic and Policy Research. Her research focuses on current trends in the U.S. labor market, and how social policies help or harm workers and their families. She is a coauthor of The State of Working America, 2002-2003, and Hardships in America: the Real Story of Working Families.

Ms. Tucker is the Vice President at the Center for Women's Policy Studies. Ms. Tucker provides leadership and direction to several center initiatives including the programs that examine the connections among women's educational opportunities, employment options, economic status and family roles. She served as the Project Director for the Center's groundbreaking research with women of color and Fortune 1000 companies which resulted in the report: No More Business as Usual: Women of Color in Corporate America.

Welcome, and I believe Dr. Boushey will start.

DR. BOUSHEY: Thank you. Thank you, Madam Chair and Madam Vice Chair, Commissioners Ishimaru and Griffin, for inviting me to speak here today. It sounds like this is an important hearing, and it's a real honor to be able to participate in it.

My task today is to provide you with an overview of the realities facing women and men as they strive to balance their jobs and their family life. And I want to go straight to the punch line. Women and mothers are in the labor force to stay, and most families cannot afford to have a full-time caretaker in the home. As a result most workers today must balance their work life with their family life. However, most U.S. work places continue to act as though there were a full-time caretaker in the home.

Women and mothers are in the labor force to stay. There's really no evidence that women, either professional women nor the other 90 some percent of working mothers, are increasingly leaving the labor market to be full-time caretakers. There has been some flattening over the past few years since the late 1990s in labor force participation rates for all workers, but that includes men and women, mothers and nonmothers. It may be that we've finally hit the peak for mothers' employment, but there are no indications that it is falling.

Over the past few years women's employment patterns have taken a path that has been parallel to men's. But labor force participation rates and employment for all groups of workers have taken an exceptionally long time to recover from the recession of 2001. And while women's employment is just barely approaching its pre-recession peak, men's employment remains below where it had been in 2000. This is important because it really does point to the fact that women are staying in the work force, and recent trends are certainly about the recession rather than a change in caretaking.

We see this in other ways. Women are continuing to invest in their human capital. They outnumber men on college campuses, and there has been an increase over the past few decades in women's lifetime on the job work experience.

Now among prime age women, that is, women age 25 to 45, 75 percent of women are working, and 71 percent of mothers are in the labor force. Three-quarters of employed mothers of children under the age of six work at least 30 hours per week or more, and nearly this entire group, about 90 percent, reports using some kind of child care.

But most families simply cannot afford to have a full time caretaker in the home. And I mean this in both senses of the word. Most families can neither afford to have a stay at home mother nor a full time nanny who can help to cope with fluctuating work schedules and work demands that may change.

Women work because their families need their income. The typical working wife today brings home over a third of her family's total income, and single mothers often must support their families entirely on their own.

For many families, having a working wife can make the difference between middle class and not. When we look across the income distribution, families in the higher income brackets are more likely to have a working wife, and she puts in more hours than less well-off families.

In recent decades, families that were upwardly mobile had a working wife. Now while income growth has slowed for all families since the late 1970s, low income families have especially needed the added economic contributions of wives. This has made the difference between falling incomes for families at the bottom end of the income distribution, and slightly rising incomes over the past generation.

And of course low income single mothers don't have a choice whether to work or not, especially since the welfare reforms of the mid-1990s. Many families of course also need working wives for benefits, such as health insurance coverage or retirement benefits. So the shift in women's work participation is not simply about women wanting to work, it's not simply about choice; it's about families needing the income.

And most families of course cannot afford a full-time nanny that can help them adjust to fluctuating work schedules. Less than one in 10 families uses that kind of care.

Therefore most families rely on different kinds of care. The most common kind of care is parental care, which often, especially for low income families, implies tag team parenting, where one spouse is at work while the other one provides the care, and then they switch.

The second most common is relative care, followed by day care. Day care, however, which provides the most stable kind of care for working parents, is of course very expensive. For families in the bottom 40th percentile of the income distribution, if they pay for day care, they pay upwards of about a fifth of their total income. Compare this to families in the top quintile who when they pay for day care, pay only about 6 percent of their income. Thus researchers found that low income families are more likely to rely on tag team parenting or relative care, which makes fluctuating work schedules incredibly difficult to manage inside the home.

As a result of women working, the overwhelming majority of children do not have a full-time caretaker at home, and so families must find a way to create work-life balance. Two-thirds of families with children have all available parents at work, and 62 percent of married couple families both parents work; in 71 percent of single mother families, the single mother is at work; and in 83 percent of single father families, the father works.

Parents, both mothers and fathers, now both typically provide care and many workers must also of course provide care for elderly or ailing parents. Yet most U.S. work places continue to act as if their workers have a full time spouse at home to provide care.

Achieving work-life balance is not a problem for just a few U.S. workers, but rather is the norm for the majority of the labor force. Workers across a multitude of demographic dimensions B age, race, ethnicity, marital status, income, educational attainment, kind of job, all of them face these work-life issues. And of course workers at the bottom end of the income distribution have far less flexibility to deal with them than workers at the top.

Yet the majority of the U.S. workforce reports having little or no flexibility in setting their hours. Nearly two-thirds report not having a paid sick day to cover their time if a family member is ill. And many workers, especially less paid workers, have to deal with erratic schedules, mandatory overtime, which can often mean not knowing when you'll need child care and how to work that out.

So in conclusion, I think it's important to stress that these issues are not going away. Women are in the labor force to stay, and we're going to have to continue to find ways to deal with this. The implications for workers are clear. Without the right to have time to care, workers especially those at the bottom of the wage distribution, must regularly make a choice between their family and their job. This is certainly not a real choice.

Policymakers and employers, however, do have some real choices to make. If all firms, for example, were required to allow workers the option of asking for flexible schedule, modeled on what the UK has done, then it would not be the exceptional employer who provides flexibility.

If all firms were required to offer paid sick days and extended leave for health and maternity, then it would not be the exceptional firm who takes on the cost of accommodating workers who have care responsibilities.

But for now it is often the case that workers with caregiving responsibilities are seen as the exceptional worker, when in fact, it's simply no longer true. This is not just a problem for a few workers; it's a problem for most. The workplace must begin to recognize that workers with care responsibilities are no longer the exception. Thank you.

CHAIR EARP: Thank you, Ms. Boushey.

Ms. Tucker?

MR. TUCKER: Thank you, and good morning.

On behalf of the Center for Women Policy Studies I extend my sincere appreciation to the Commissioners for the invitation to provide a statement this morning on the very important and often overlooked issues of women of color caregivers in the workplace.

The Center for Women Policy Studies is a multiethnic feminist policy B the Center for Women Policy Studies is a multiethnic feminist policy research and advocacy organization. And our task is to bring the diverse voices of women into important policy debates like the one this morning. And we do that on a range of issues.

My statement is drawn from the Center's research with working women of color, particularly the women who participated in our National Women of Color Work Life Survey, which is the first such quantitative survey that focuses on how women of color in corporate America experience the often talked about work/family balancing issues.

Further, even where there is some attention paid to women of color, we rarely B rarely B look at the diversity and the complexity of the population, which includes at a minimum, African-American women and women of African descent; Latinos; Native American; and Alaskan native women; Asian American and Pacific Island women.

Instead, most studies opt for one or the other. But it is the hallmark of the Center's work to look at the combined impact of gender, race, ethnicity and economic status, to ensure that we present the broadest and the deepest possible analysis for policymakers in both the public arena, and in the private sector.

We believe that the Center's research on women of color in the workplace contributes to fill in the knowledge gap in this regard.

We began our research about a decade ago by conducting two quantitative studies using focus groups. From that work, we learned that women of color do not experience the workplace culture with their race or ethnicity and sex neatly compartmentalized as two separate facts of life. While their treatment as women of color is often considered a workplace diversity issue, their struggles to balance work and family responsibilities are considered work and family or women's issues by some employers, the lives of women of color do not B do not B fit this mold.

Some focus group participants, for example, reported that when they request leave for family reasons to participate in a child's extracurricular activity, they are treated differently by their supervisors than their white women colleagues. In these instances what began as a work/life balancing issue, crossed the invisible line to become a differential treatment on the basis of race or ethnicity. Our learnings from the voices of women of color in the focus groups, their experience and their self-defined needs, led us to conduct the survey, which provides additional evidence of the link between caregiving responsibilities and disparate treatment in the workplace.

We conducted this national women of color work/life survey in 16 Fortune 1000 companies, and to our astonishment the women in these companies really were eager to provide information. Unfortunately, we had a survey that was 12 pages long, and, not because we wanted to, the survey ended up being distributed at Christmas.

Let me just say that we were totally surprised that 1,500 women B 22 percent of the sample B complied, and completed this survey. The women who completed the survey were at all rungs of the corporate ladder, and not only did they answer our difficult questions, but they wrote responses, comments, in the margins of the questionnaire, and in fact, the title of our report, No More Business as Usual, is one of the quotes from the women who filled out the survey. So women need to know that we care, and that these are important issues.

Nearly half of the women in this survey, 47 percent, are in the sandwich generation, meaning that they are caring for B they are caregivers to dependent adults, and at the same time, a child or children under the age of 18.

I'm not going to go through the survey because I don't have the time, but I will say that the results B the survey results are divided into five major finding areas. These areas are: workplace culture; the link between workplace culture and work/family balance; the impact of workplace stress on work/life balance and women's personal lives; coping strategies that women use to respond; and the importance of a supportive workplace culture in helping employees maintain work/life balance and encouraging them to remain with their companies.

What I'd like to do now is to highlight some of these key findings. First of all, a substantial number of women said that they were proud to work for their companies, and that they were full partners with their companies, and that they felt that they were part of their teams. Yet, they also B that was the good news B yet they also told us that they would not recommend their companies to a friend for its commitment to diversity. They doubted top management's commitment to diversity, and, they did not really feel safe networking with their colleagues.

I think one of the most important findings from this survey is the fact that the women who most often reported not feeling comfortable in their workplaces were the women who were poised to crack through the glass ceiling, the women in top management. These highly educated women told us that they most often were the ones who used strategies to deal with stress, and we call these strategies, burn-out avoidance strategies. And most often these burn-out avoidance strategies often led to a detrimental behavior on the part of the women, like getting up early to extend the day to have more time to do what it is they needed to do.

Finally, I call on the Commission to use its powers to enforce the laws that you have in your arsenal of laws because women of color need to know that they can advance in their careers; and that's really important to helping them balance their work-life responsibilities. Thank you.

CHAIR EARP: Thanks to both of you. We will start with questions and comments starting with the Vice Chair.

VICE CHAIR SILVERMAN: Dr. Boushey, you've given us a very complete picture about the labor force and the work/life experiences of parents today.

If you could make a prediction about the future, how will the picture look 20 years from now? And do you foresee any changes in demographics or the work/life balance strategies of workers in the near future?

MS. BOUSHEY: That's an interesting question.

I think that since it is the case now that the overwhelming majority of women are at work, and are parents who are at work, and given the fact that women do continue to take off sometime when they have children, typically if you're working, it's about three to six months, but then some women take off a slightly longer time. It's not clear to me that we have that much more room to go in terms of rising employment rates. However, in terms of the workplace adapting and my hope of course is that the workplace will continue to adapt to this new reality rather than pretending that it doesn't exist. But I think that that is certainly dependent on what folks like you do, and policymakers and firms do around the country.

VICE CHAIR SILVERMAN: Do you think as more women break through the glass ceiling on that, on their own, that they will actually help workplace policies beyond what public policy can do? Is there any evidence, as women rise to the top, that we've been able to change the prototype for the white male with the full-time caregiver at home?

MS. BOUSHEY: That's an interesting question. I think we see some evidence, and some evidence not. You are asking B in many firms that would be putting the onus on the individual worker to have to start changing a workplace that may be hostile to those work-life issues that they're facing. So I think that many of the people sitting behind me who have more evidence from court cases and that kind of research have shown that trying to do that on your own in a workplace may not be the best strategy for moving up yourself.

We know from literature on women managers that there is some evidence that they may be more likely to be friendly to other workers with children, but they also may be not as friendly. There is a lot of research on some of the stereotyping and bias that also shows that women hold women up to a higher standard in terms of what they expect on the job; that they may be less likely to give them a little bit of slack, because I think that we're still struggling through the generation above me that was the new generation to have made these advances in the workplace.

And I think, and at least from where I sit, it appears that it was very difficult for that generation to do it. And they are kind of trying to toughen up the younger folks. And that doesn't necessarily lead to the kinds of changes within firms that you'd like to see. One more sentence: we hear a lot from older workers, I've heard a lot from older workers, that, well, we did it. So I think it will take broader changes.

VICE CHAIR SILVERMAN: I agree with you. I had spoken to Lisa Belkin who wrote that famous article in the New York Times. And one of the things she said was, the way people reacted to it B and I realize that it only affected high income women B but depended on the generation they came from, so I think that this is a changing issue.

Ms. Tucker, the survey that you talked about and the impressive response, which shows you how much a working woman can do; do you think there would have been a difference in your findings if you had focused on smaller companies?

Have you done any research towards that, and whether they are more hospitable or less hospitable?

MS. TUCKER: We haven't, and I'm not sure if that might have been the case, but we would have to see, obviously. But what we heard from these women really shows that there is a need for them to have some relief in trying to balance their lives, and trying to move in the workplace.

VICE CHAIR SILVERMAN: Can I ask just one last question? Where do men of color fit into this?

MS. TUCKER: We have not looked at men of color in this scenario, but my educated guess would be that as workers who are trying to balance work and family, probably not with the same level of commitment or responsibility to the family side that women carry, that they too would not be able to compartmentalize their work and family responsibilities, and their need to be successful in the workplace.

VICE CHAIR SILVERMAN: Thank you. I see my time is up.

CHAIR EARP: Commissioner Ishimuru.

COMMISSIONER ISHIMARU: Thank you, Madam Chair. Thank you for excellent presentations. Dr. Boushey, did the statistics you presented regarding women and mothers and their prevalence in the workforce vary by race or national origin? Or is it constant across groups?

MS. BOUSHEY: You know it certainly does vary by race, but that is not, I think, the most important distinction. I don't know if Ms. Tucker would like to speak to that as well.

MS. TUCKER: I'm sorry, could you repeat the question?

COMMISSIONER ISHIMARU: Sure. Is there a difference based on race or national origin on the rate of women and mothers in the workforce, the prevalence?

MS. TUCKER: I think that the numbers are changing everyday. Obviously from our historical background we know that African-American women have the longest participation in the workforce, but Latina and Asian American women are moving very quickly to become full time workers in the workforce in numbers that are pushing them to the point where they are nearly competing at the same level as African-American women.

COMMISSIONER ISHIMARU: I see.

MS. TUCKER: And I think that that will continue, those numbers will continue to rise, and you will see more equality in terms of the numbers.

COMMISSIONER ISHIMARU: Yes, and it also I think would mesh with economic levels and where people are rising to, if in fact they are rising.

MS. TUCKER: Yes, if in fact they are rising.

COMMISSIONER ISHIMARU: Do you have any strategies that might help employers, or that employers could implement, that according to your research or experience would help women of color the most?

MS. TUCKER: I think for women of color it is really important for employers to understand that you can't have a work-life balance director and a diversity director who are in different silos so to speak.

COMMISSIONER ISHIMARU: Yes.

MS. TUCKER: Either the function has to come under one person who then works to disperse, or these two sections will have to be joined at the hip,

COMMISSIONER ISHIMARU: Yes.

MS. TUCKER: . . .because what we found is that women of color do not experience life as a woman or as a person of color, but the two things together.

COMMISSIONER ISHIMARU: Combined, yes. Dr. Boushey, quite often when the popular press talks about these issues, it's about upper class women. And I've found that it covers the whole range. Could you give us a feel for the kinds of jobs most women are working, or that working mothers do, and how much they earn, and sort of give us a breakdown if you could along those lines?

MS. BOUSHEY: Well, certainly. In the early part of my comments I noted that nearly 90 percent of moms between the ages of 20 and 45 are not professional moms, and yet I would probably say that about 90 percent of the press that we see on these issues is about professional moms. So I feel like we can't say that enough, that the majority of women facing these work-life balance issues are not professional mothers; they are not lawyers; they are not doctors; they don't have the flexibility.

I think in many workplaces what happens is, there is some B even if there is some flexibility in that workplace and someone who is committed to it, it is often only offered to or consistent with jobs at the top end of the organization, and does not feed throughout the entire organization. So you will hear about, say, well, of course maybe we can have an attorney or a top person who can work at home a little bit, or who can leave the office for an hour to go take a kid to the doctor or something. But of course the receptionist or the clerical person or somebody at the bottom end of the organization doesn't have that kind of flexibility. So I think it's really important to note that those dynamics within the workplace, and who has power and who has power to make their own decisions are paramount to how workers experience these work-life issues.

In terms of, you asked about, sir, the earnings and the kinds of jobs and the distribution of workers, of course women still earn on average 77 or 78 cents on the dollar, and that is consistent across educational groups, the gender pay gap is not that different for women at the top as it is for women at the bottom. And over the past generation we've seen of course women moving into a wide variety of new kinds of industries and occupations. But of course it remains the case that women are overrepresented in many sectors like retail or still in the caring professions, many of which have odd hours that make some of these work-life balance issues very difficult to manage.

And one example that I would point to, there's been some really amazing work coming out of the University of Chicago, looking at low wage workers in retail and some transportation and a couple of other sectors, looking at what their scheduling issues are, and how they actually are able to balance that with their child care, and finding out that lo and behold, in most of these jobs schedules are posted on Thursday for a schedule that starts on Sunday. And people don't necessarily know how many hours they are going to be working that week.

And if you are trying to pay for child care, typically that child care provider needs consistency, and wants to know if your kid is going to be here week after week, and they have to pay for that anyway. So there are a ton of jobs, the bulk of jobs at the bottom that are really inconsistent with a work-life balance.

COMMISSIONER ISHIMARU: I would assume that it's hard to find child care, or find a pediatrician that works beyond 9:00 to 5:00.

MS. BOUSHEY: Yes.

COMMISSIONER ISHIMARU: Having tried to find it myself.

Could I ask Ms. Tucker one quick question, Madam Chair?

The study you cited, the Fortune 1000 study, is that on your website?

MS. TUCKER: Yes it is, and I also brought copies of the report.

COMMISSIONER ISHIMARU: Great, and the website address is?

MS. TUCKER: The website address is www.centerwomenpolicy.org.

COMMISSIONER ISHIMARU: Great, thank you.

Thank you, Madam Chair.

CHAIR EARP: Commissioner Griffin?

COMMISSIONER GRIFFIN: Thank you both very much. I really, I learned a lot from both of you.

Continuing on what Commissioner Ishimaru was talking about with you, Dr. Boushey, what other things besides posting schedules in a more timely manner for people to prepare, what else can be done to encourage employers to extend benefits to the lower wage earners?

MS. BOUSHEY: To extend benefits like paid time off and health insurance?

COMMISSIONER GRIFFIN: Right.

MS. BOUSHEY: It seems to me that the great experiment of hoping that employers will just do it, it's not really helped workers at the bottom. And we know that workers in the bottom 40 percent of the wage distribution, most of them do not get health insurance from their employer, be that their own or their spouses.

We know that most of them do not have access to paid holidays, to paid vacations, to paid sick days. I think that the only way to really promote that is through legislative action, either at the state, city or federal level.

COMMISSIONER GRIFFIN: Okay, thanks. Are you aware of any research regarding the economic benefits that there are for companies? Is there anything that you can tell us about companies that adopt family-friendly work policies and the economic benefits? Because I'm thinking maybe that's one way to encourage them too.

MS. BOUSHEY: I think that there are a number of issues there. First of all I think that yes, there is a lot of research that's been done over the past 20 some years that has shown that family-friendly policies, they do help workers who have care responsibilities move up the job ladder; it helps with retention; and if you are an employer that cares about retention and cares about investing in your employees, then that's a great strategy.

I think that we're up against a labor force where that kind of investment in employees is also inconsistent with other models that firms have been developing, which is to not have lifetime employment where they are not thinking that turnover is their biggest problem. So in the business case, it works for the companies that think that investing in their employees and that keeping turnover low is important. But we know that other firms B Wal-Mart of course is the one that comes to mind B where they are not as concerned about high turnover, because they don't feel that their workers are bringing that kind of skill that is added, where there is B sorry, that sentence didn't come out right B where there is a benefit to keeping somebody over the long term. And I think that is also a reason why we also need to step back and understand that while there are many firms that do go above and beyond and provide work/life balance, provide benefits to all workers, as long as they are the exception, they are taking on the cost of that, where other firms are able to either freeload off of it, because you know one spouse works in a good firm and one spouse doesn't, or be able to compete on offering those kinds of benefits to workers. And we need to create a level playing field so that firms cannot compete on not offering those kinds of benefits to workers.

COMMISSIONER GRIFFIN: Thank you. Ms. Tucker, you talked about women of color not feeling safe talking to coworkers about caregiver issues. Do you have any recommendations for how we here at the Commission can address this issue?

MS. TUCKER: Well, I mentioned that women of color didn't feel safe networking, and were treated differently when they had caregiver issues. So that may be where the safety piece is coming in.

COMMISSIONER GRIFFIN: Yes.

MS. TUCKER: While it's really important, I believe, that employers invest in making sure that all of their employees are trained to address the issues of caregiving from their very, very diverse populations and not get caught making any group feel uncomfortable because they have caregiving issues, and I think that companies need to find a way to put the brakes on those individuals who don't adhere to policy around these issues and treat workers differently.

COMMISSIONER GRIFFIN: So maybe for us it's an education piece?

MS. TUCKER: Well, I think it is always important that the education piece be a part of it, but there is also an enforcement piece that must occur. And when you are treating employees differently, and there is a pattern of differential treatment amongst employees, based on race, based on gender, based on ethnicity, or level and company, then I think that those supervisors or managers must be held accountable, and so should the companies.

COMMISSIONER GRIFFIN: Along those lines, you also talked about women of color when they ask for time off to go to extracurricular activities for their kids, are treated differently than white women who B you didn't say this but I'm assuming B have asked also for time off.

MS. TUCKER: Well, that was the example that was given to us in the focus groups by some of the women, that when I ask for time off I'm treated differently than my colleague who is a white woman, and when that occurs, and there is a pattern of that kind of treatment B

COMMISSIONER GRIFFIN: Exactly, we would like to know about that.

MS. TUCKER: B then companies must be held responsible.

COMMISSIONER GRIFFIN: And again, an education piece would be to encourage women to let us know when that happens.

Thank you very much.

CHAIR EARP: Just one question, Dr. Boushey, the 90 percent that you mentioned, 90 percent of moms in the workplace are nonprofessional?

MS. BOUSHEY: As in they don't have beyond a BA. They don't have an advanced degree. So they are not a lawyer or something, a Ph.D. or the scientist.

CHAIR EARP: Okay, I just want to be clear about that, because that's contrasted with the wage earner or the person who is B

MS. BOUSHEY: Yes, of course. They could be white collar.

CHAIR EARP: All right.

COMMISSIONER ISHIMARU: She also wasn't talking about professional mothers, mothers full time; at home full time I take it.

CHAIR EARP: No, no, no, I thought the data point was moms in the workplace.

COMMISSIONER ISHIMARU: In the workplace.

CHAIR EARP: It was just that the 90 percent seemed staggering, so I wanted to be clear about that.

Well, thank you to both of you. We'd like to invite the second panel forward, and ask Commissioner Ishimaru to introduce those experts.

COMMISSIONER ISHIMARU: This expert, Madam Chair.

CHAIR: …this expert!

COMMISSIONER ISHIMARU: We have the honor today to hear from our colleague from our New York District Office, Elizabeth Grossman, who's the Regional Attorney.

The district office in New York covers the state of New York and almost all of New England. The litigation docket of the New York District Office is one of the largest in the country, and includes some of the Commission's most significant class cases.

When people ask me about my colleagues at the EEOC, I always point with pride to Elizabeth Grossman as one of our stars. And I'm delighted you are here, as I know our colleagues are. And welcome.

MS. GROSSMAN: Thank you.

Chair Earp, Vice Chair Silverman, Commissioners Ishimaru and Griffin, thank you very much for allowing me the opportunity to participate in this important hearing.

My testimony today will focus on three subjects: first, it is abundantly clear that pregnancy discrimination continues to be a problem in today's workforce, and includes issues of discrimination against women as caregivers.

Second, I'm going to share some of the lawsuits that the New York District is handling which have touched upon discrimination against women as caregivers.

And third, I will discuss the emerging nationwide increases in charges and lawsuits directly challenging discrimination against those who have requested that their employer permit a work-family balance.

Almost 29 years after the Pregnancy Discrimination Act was passed, the Commission continues to investigate and litigate charges involving pregnancy discrimination in record numbers. Pregnancy discrimination charge filings have increased 45 percent between fiscal year 1992 and fiscal year 2006. Pregnancy lawsuits by EEOC have risen from six or fewer per year in the 1990s to 32 in Fiscal Year 2006.

And these statistics are brought to life for us in the field daily through our claimants and litigation. And many, many of our claimants have reported in 2007 that managers are still using words to the effect of, the woman's place is in the home, not in the office.

We've had claimants from numerous lawsuits tell us how they attempted to time or even hide their pregnancies so that they wouldn't be showing by the time bonuses or plum assignments or promotions would be decided. As one claimant in EEOC v. Morgan Stanley stated, a woman is never more visibly a woman, and thus not a man, than when she is pregnant. And during a trial this past October, in EEOC v. Everdry, a claimant

testified that her manager told her she would be fired if she wore maternity clothes.

Every month I receive several calls from women who believe they are experiencing pregnancy discrimination, and these are really among the most desperate people who call me, and a lot of desperate people call me. And I am saddened every time I talk to a woman who's trying to experience what should be a joyful life-changing event and she's calling because she's experiencing a crisis that threatens her livelihood and/or her career.

And as we all know pregnant women are increasingly aware of their rights. They understand the Family Medical Leave Act grants them some rights in some workplaces.

But really women and men continue to be confused regarding exactly what actions an employer can take.

We are getting more charges of pregnancy discrimination, but I believe that the underreporting of pregnancy discrimination remains a significant problem. Many, many women report being afraid of retaliation. And of course they're conflicted about pursuing their rights, given their increase in family responsibilities.

Furthermore, women are often confused as to whether pregnancy is actually covered by the antidiscrimination laws. As we all know, the PDA clarifies that Title VII's protections against pregnancy discrimination are subsumed within the sex discrimination category in the statute. But as a result, many of the Commission's own materials, such as our charge form, such as overviews of the laws we enforce, do not contain the word pregnancy in them. Similarly, many a very good antidiscrimination policy put in place by an employer does not contain any reference to pregnancy discrimination or to maternity leave, and I think we have a responsibility as the EEOC to continue to increase our outreach efforts to make everyone aware of pregnancy discrimination.

And as we are all here to talk about today, we found in many instances that the employer's discriminatory behavior does not end with the birth of a child. I've heard from dozens and dozens of women that when they return to work after giving birth, the problems start. They are met with the assumption that they don't really want to be at work; they're only there out of economic necessity; and that the employer assumes that they have no interest in wanting to succeed or advance.

In recent years the New York District Office has successfully resolved pregnancy discrimination lawsuits involving maternity leave, and these cases really foreshadow the emerging theory of caregiver discrimination that we're here to talk about.

So just a couple of examples. In 2002 we resolved EEOC v. Bell Atlantic, in which we alleged that defendants gave men as well as women who adopted children a 30-days leave with corresponding service credit pursuant to a care for newborn children credit. Women who had given birth and taken maternity leave were not eligible for that program, and if they took it they were denied the service credit, which affected among other things their eligibility for early retirement.

In EEOC v. Morgan Stanley, in addition to pay and promotion discrimination, we also alleged that female employees were discriminated against in regards to their pregnancy, maternity leave and family status, and that women who became pregnant and had children were thereafter passed up for promotion or otherwise treated less favorably than their colleagues.

And one of our smaller cases tells a very common story faced by thousands of women each year. In 2003 we filed EEOC v. John Harvard's Brewhouse, which just received unprecedented and nationwide media coverage for a one person at a restaurant case. And I think it was just in 2003 that the press and the public were really ready to hear the story of a very typical pregnant woman. And in this case we charged that this career of Jennifer James as a manger in training of a restaurant abruptly ended when she told her employer she was pregnant. She was told to consider her options, and when she insisted on continuing her pregnancy, she was dropped from the manager training program and ultimately discharged.

We are currently litigating a case, EEOC v. Ventiv, alleging that defendant denied pregnant salespersons leave of absence while granting leave of absence to nonpregnant employees for other reasons.

Just last month we filed a case against the New York State Department of Correctional Services on behalf of pregnant women who were on leave, who were on workers' compensation status due to a work-related injury, and what we allege was discriminatory was when the women gave birth, they took them off the workers' compensation status with no one else, and put them on maternity leave, which of course provided them lesser benefits. So not only are the number of charges and lawsuits alleging pregnancy discrimination increasing, but the legal theories behind them are evolving as well.

Since 2004 we in the field offices have seen a dramatic increase in charges which allege that women are being subject to sex discrimination because they are caregivers of young children. And just to mention a couple of charges that are typical, we are looking at several charges where charging parties allege that they were denied flexible work schedules for child care purposes while other people received flexible schedules for other reasons.

Another charging party claims that her pay decreased after she became pregnant. And when she returned from maternity leave she was told her career was paused because she had a child, resulting in her demotion.

I see my time is up. I didn't quite make it through.

COMMISSIONER GRIFFIN: That was really quick.

CHAIR EARP: I don't think there is opposition to your continuing.

MS. GROSSMAN: Okay, because I do want to talk about two cases that we are currently litigating.

One, the Houston District Office is litigating EEOC v. the Montalbano Group, alleging that the employer engaged in pregnancy discrimination by firing charging party, Michelle King. Ms. King began working for Montalbano in 1999 and in 2003 the company asked her to head up a new office in Tampa. A few months after she told her employer she was pregnant, he indicated he was going to terminate her, and stated in an email, "right now I feel the best thing to do is for you to have your baby, and for the next three months nurture him or her, and we'll discuss coming back probably around April or May. There is no way you can be a good mother while achieving what I aspire in Tampa."

The Chicago District Office is currently litigating EEOC v. Midwest Emergency Associates, charging that a company which provides physicians to work in a hospital emergency room discriminated against a doctor by demoting her from assistant director, and denying her owner or partner status because of her gender, and after she took pregnancy leave.

Another category of cases relevant to today's topic is often referred to as ADA association cases. And in these cases the charging parties allege that their employers discriminate against them because of their association with a person with a disability, often a family member. And over the past 10 years we've gotten about 200 cases per year, and that has remained very constant. In the late >90s we litigated a case, McGrenaghan and EEOC v. St. Denis School involving a school teacher who gave birth to a child with profound disabilities that required 24 hours of nursing care. And when she returned to work she was demoted to part time.

In conclusion, we will certainly continue to see increasing numbers of charges filed by caregivers and employees who insist on the right to an appropriate work/family balance.

Our nation cannot afford to lose the valuable contributions of employees who wish to succeed in the workplace but are subjected to unlawful discrimination because of unfounded stereotypes about caregivers.

Thank you very much for giving me the opportunity to address this important issue.

CHAIR EARP: Thank you, Elizabeth.

I didn't know myself that our charge forms don't contain the word, pregnancy or maternity. That is something that we can work on, and we will talk to enforcement about that today.

COMMISSIONER GRIFFIN: Is that a standard charge form, or is that New York's charge form?

MS. GROSSMAN: No, it's the standard charge form. And it makes sense because that's what the statute says. For example it doesn't have harassment on there either because of how the statute is written. So it's not that we forgot it. But so then there is this other box that's a bit odd, and you get all sorts of answers to the questions. So it's certainly a dialogue that I would welcome participating in. But you know, you don't want to have the whole charge form take up a page.

CHAIR EARP: It could definitely be helpful to take a look at the form because the public would appear to be more aware and familiar with sexual harassment or harassment of any form than being able to, if you are not a lawyer, intuitively draw the link between sex discrimination and pregnancy or maternity-related things.

Thank you. Vice Chair?

VICE CHAIR SILVERMAN: Thank you, Elizabeth, and I'm glad you kept on, because we did want to hear from you.

You talked about the charge data, and you talked about some of the pregnancy discrimination cases, but you didn't mention the case I think I found most surprising last year, and that was out of our Miami office, and it was a case against Motherhood Maternity, who, anyone who's been pregnant knowsB

CHAIR EARP: Motherworks.

VICE CHAIR SILVERMAN: Yes, Motherworks, who owns so many of the stores that we shop in, and you'd think that if at any time you'd want a pregnant worker, there would be a perfect advertisement. So it just shows you what's out there.

Can you elaborate a little bit more about the ways B and when I say ways, I mean both glaring and subtle B in which you've seen women treated differently when they return to work B or heard about women being treated differently after they return to work after having had a child?

MS. GROSSMAN: Yes. I tried to address some of the glaring ways. But I am very concerned that pregnancy discrimination like all other kinds of discrimination is getting more subtle. And so we are seeing B and sometimes we have to drag it out of the charging parties because they are not even articulating it B but, for example it's a common assumption that a woman with young children doesn't want to travel. Okay? And so, even without asking the women, do you prefer not to travel, it is assumed that they don't want to travel, and they're denied the plum assignment or the plum training or the plum mentoring or whatever it is that they would actually affirmatively like to do.

Same thing be it after work or before work or weekend social events that are so important to so many people in their jobs. That they're not even invited to these social events that often result in opportunities for client contact or just time with the boss; that they're not being invited to anymore. And often they're very aware of it, because they were invited to it before, before they had a kid.

VICE CHAIR SILVERMAN: Before marriage or before pregnancy?

MS. GROSSMAN: It's usually before pregnancy.

VICE CHAIR SILVERMAN: Are you seeing charges involving stereotypes about men who want flexible schedules or time off for caregiving purposes? And, related to that, do our investigators recognize currently that that's an issue? Because obviously when they get to you sometimes it's because they're not getting satisfaction other places.

MS. GROSSMAN: Right. We are definitely seeing charges B I'm going to have to say, some very strong charges B filed by men who are just getting blatantly subjected to stereotypes. But you know, women are getting time off B or an early schedule to leave at 4:30 to pick up the kids from childcare, and the men are not. And the negative stereotypical comments that are made to men, you know, there is often less of a check on managers when it's men.

The question about the investigators, I think with a lot of investigators, they get it, a lot of them don't. They would certainly benefit from increased training.

VICE CHAIR SILVERMAN: From spotlighting these types of issues?

MS. GROSSMAN: Right.

VICE CHAIR SILVERMAN: All right, thank you very much.

COMMISSIONER ISHIMARU: You know, when I've raised this issue, when I've met with our people around the country, quite often I'm met with blank stares. And when you talk about pregnancy discrimination, I think our people get that, that pregnancy discrimination is illegal and they should be on the lookout for that. But after the pregnancy is done, is there a violation? Is there B if women are being treated differently, or if men are being treated differently, is there a violation? And you talked about cases that your office has looked at, the charges you've looked at, the cases that have been brought by other offices as well. So some offices are doing that. Was there any special training done in your office or in these other offices that highlighted these cases, these types of issues, so that people in your office would know that this was something that they should be on the lookout for? I'm trying to figure out if there's a key so we could replicate this, not just in certain offices, but in our offices nationwide.

MS. GROSSMAN: Well, one of the triggering events for us was the 2004 2nd Circuit decision, the Back case, which I assume is going to get talked about by the next panel. And so that really B although it's not a Title VII case, all the lawyers'ears perked up, and eyes perked up, and we really started paying attention to it, but I think we are much better at asking the questions than we were B I don't think we were asking any of these questions 10 years ago. And so it was a rare charging party that brought it to our attention. And in large part because, as everyone has noticed, the media is so focused on this issue, people are coming in. Some of them come in with charges drafted the right way, framing the issues the way you would like to see them. And as I said before, sometimes we have to work with them, and ask them questions to really pull out the issue, in particular some of the men.

COMMISSIONER ISHIMARU: Did you B did the legal staff work with the enforcement staff, the investigators, to provide education about Back and about what this might mean for the charges that would come through the door?

MS. GROSSMAN: We did a formal training for lawyers on motherhood discrimination. I think the training of investigators has been more informal. But we try and use our cases as examples. So I think everyone in my district knows about Bell Atlantic. Everyone in my district knows about Morgan Stanley. The large class cases really do serve to increase awareness of issues.

COMMISSIONER ISHIMARU: And have you seen cases in both your district and in other districts that deal with caregiving for parents B for your parents as they age? Have you seen cases like that?

MS. GROSSMAN: Very few. Very few.

COMMISSIONER ISHIMARU: But I assume that will again be on the map as those issues become larger and larger and people realize that there could be a claim under the statutes we enforce. And again, the trick for us is how do we educate our people so they know it when it comes through the door so it doesn't drop off before an investigation can get started.

Thank you for coming. It's always enlightening to hear from you.

MS. GROSSMAN: Thank you.

COMMISSIONER GRIFFIN: Elizabeth, thanks. I know in earlier discussions on this that we've had here at the EEOC, Joe Sellers would talk about clients he had where he saw a real marginalization of their duties once they became pregnant. And he said, especially in lower paying jobs he saw that women were marginalized right away, their hours cut, their duties cut, things like that. So I appreciate your testimony.

What role do you believe the Commission's new emphasis on systemic work can have in challenging pregnancy discrimination?

MS. GROSSMAN: You know it's been very hard to develop class pregnancy litigation over the years.

COMMISSIONER GRIFFIN: Right, right.

MS. GROSSMAN: I think I pretty much talked about every large systemic pregnancy case that I've worked on.

And these policy cases like the Department of Corrections, I mean that's the policy. You can do those cases, but there's not reductions in force that, you know, more than a handful of people that tend to affect the pregnant women. So most of our pregnancy litigation across the country has been individual cases. I think the systemic initiative is getting people to focus more on the policy cases.

COMMISSIONER GRIFFIN: Yes.

MS. GROSSMAN: For all issues and bases, and you may see more Morgan Stanleys, you may see more Bell Atlantics, you may see more Department of Corrections.

COMMISSIONER GRIFFIN: Yet we know in big companies, even though it may not be a written policy, the treatment for pregnant women is usually the same, so.

MS. GROSSMAN: Yes, again, it depends. Like the Ventiv case that I mentioned, the stereotype of the pharmaceutical companies as you know is that they're all employing young women who are attractive, who would be of child-bearing age. And so in a workforce like that, where there's extremely high turnover, there's not a lot of training. The sales force does tend to be younger women. You may be able to develop a class in a workforce like that. But with many of our even large employers, there's just not B a lot of pregnant people, but there's not a critical mass that you're able to look at. It's the same really with disabilities. There are people with disabilities everywhere, but finding enough people to really be able to look at a companywide analysis is difficult.

COMMISSIONER GRIFFIN: Yes, let me ask you quickly, I love the Department of Corrections case, and we talked about it in an earlier discussion, can you talk a little bit B because it's actually quite creative, using the Equal Pay Act to attack that policy B can you talk a little bit about when maybe it's appropriate to bring those cases? It's a pregnancy case, but it's really under the Equal Pay Act?

MS. GROSSMAN: Right. I mean this case was brought under the Equal Pay Act because we didn't have jurisdiction under Title VII because it's the state and local governments Bell Atlantic was an Equal Pay Act case as well, but of course there we had Title VII there as well. And so I'm very appreciative of the Equal Pay Act in this context. It is pretty established case law that wages are benefits under the statute. So we are able to do these cases, and I hope this case will serve as an example for others to use the Equal Pay Act as a tool.

COMMISSIONER GRIFFIN: Yes, that's what I was thinking, some of these marginalization cases that may be actually the appropriate roles really under equal pay. So thank you very much.

CHAIR EARP: Elizabeth, given what you just said about systemic being applicable to allegations of pregnancy discrimination, would you perceive it also systemic being as difficult in cases of alleged discrimination against women because they are caring for younger children as opposed to their status as being pregnant or something related to that?

MS. GROSSMAN: Again, it's definitely possible, and you will see cases. But in terms of the number of people and the centralized decision making, if there's no policy, then the practice is much harder to track as it would for promotion, pay, termination, et cetera. There are obviously a tremendous number of parents in the workplace, so if you're looking at parents or caregivers as sort of a protected group for your analysis, there's going to be a critical mass of them. But every job is different, every job has its own unique amount of flexibility, every department is run differently. So we're looking hard at a number of policies that do not have flexibility for start time and end time and all that, and what, both the disparate treatment angle, whether that affects people with disabilities, whether it affects people with children or other caregiver responsibilities. So there's a lot of interesting ways to look at these rigid policies that seem to be cropping up more and more as far as I'm seeing.

CHAIR EARP: Well, thank you for your creativity in New York and for staying in front of this.

Thank you very much.

MS. GROSSMAN: Thanks so much.

CHAIR EARP: We are going to take a 10-minute break and come right back.

(Whereupon at 12:20 p.m. the proceeding in the above-entitled matter went off the record to return on the record at 12:35 p.m.)

CHAIR EARP: Thank you for being here. Let me welcome the third panel and ask the Vice Chair to introduce them.

VICE CHAIR SILVERMAN: Welcome, third panel, and welcome back everybody.

On our third panel we have Joan Williams and Zachary Fasman.

Professor Williams is a national expert on work-family issues and workplace bias against mothers, and she's the author of among other things, Unbending Gender: Why Family and Work Conflict and What To Do About It. She is the founding director of Work Life Law, and a distinguished professor of law at the University of California at Hastings, and formerly at my alma mater, American University, Washington College of Law.

Mr. Fasman chairs the employment law department in the New York office of Paul, Hastings, Janofsky and Walker, where he represents management and labor relations, equal employment, and employee benefit matters in litigation.

He has lectured and written extensively on current legal issues, and is the author of, What Business Must Know about the ADA; and the coauthor of the Employment Law Compliance Handbook and The Equal Employment Audit Manual.

Thank you.

CHAIR EARP: Why don't we start with Mr. Fasman.

MR. FASMAN: Thank you. Good morning, Madam Chair, Madam Vice Chair, members of the Commission. I appreciate the opportunity to appear here today and to address these important issues, and I apologize for having the cold that seems to be going around New York City.

Let me start by saying as a lawyer who represents employers, too often we're accused of being in favor of discrimination. I'm certainly not in favor of discrimination.

I also am not opposed to work-life balance, which seems to be a much broader concept. It seems to me that family responsibility discrimination, the term that this panel is going to discuss, is an important issue, and that term is useful in many different respects, pointing out that there is gender discrimination in the workplace, based upon stereotypes about mothers being caregivers, and making assumptions about a mother's supposed detachment from work is important and useful. That should be pointed out. People should be aware of those types of biases.

It's also important to make sure that caregiving leaves of absence are administered on a gender neutral basis. Certainly from the ADA viewpoint associational disability B associational discrimination which I'd like to talk about for a moment is important, and management training in all of these areas is highly significant.

From the point of view of EEOC as a law enforcement agency, though, I think that there are questions about the scope of the concept of family responsibility discrimination, and I'd like to discuss those for a few moments.

First, family responsibility discrimination is not a unified concept. It's an amalgam of very different cases arising under very different circumstances. Analytically it's a difficult concept. Professor Williams and other FRD advocates note that these claims are brought under Title VII, the Pregnancy Discrimination Act, the ADA, and the FMLA at the federal level alone, and one recent piece by Professor Williams noted 17 different theories under which FRD claims are brought. This in and of itself indicates that the causes of action are disparate. And when you think about it, that's clearly the case. How much similarity is there between the case of a woman who's denied a promotion by a supervisor on the assumption that because she has young children she will not want to travel or she will be somewhat detached from the workplace, and the case of a male employee who seeks an indeterminant leave of absence to care for parents who are aged and ill?

In the former case we're talking about straight out gender bias on assumptions by a supervisor. In the latter case, where an employee, male employee, comes in and says I'd like indeterminate leave, we're talking about a length of leave that's in excess of what Congress provided in the FMLA, which may or may not be lawful under Title VII and under the FMLA.

The one linkage between those cases and the typical B the other types of cases that we see under the FRD rubric is that they all involve alleged discrimination against caregivers. That is, it's the nature of the plaintiff rather than the theory upon which they are proceeding that's critical. And this of course is the key point in thinking about this from a legal point of view. Congress has never prohibited discrimination on the basis of family responsibilities, so the protections provided under the law for caregivers are indirect. They are derivative of gender discrimination, race discrimination, or what have you, of the PDA. And that's why it's important to look at how the concept of FRD fits within the existing laws, and the way in which these laws have developed and been interpreted.

Certainly the easiest cases of FRD to square under existing laws are those dealing with sexual stereotypes or gender based stereotypes in the workplace. The classic case of the supervisor says, well, I would have promoted you, but you did just have a child and I figured that you wouldn't want to work so hard. I mean those are easy cases. The surprising thing about those cases is not that they are brought, but that they are brought with such profusion, what Professor Williams and her colleagues call loose lips cases. There is no question that there are a lot of those reported in the literature, but those I think are easy from the analytical point of view. That's gender discrimination. I mean it's direct proof of discrimination, and I don't think that those are hard cases.

Similarly, gender based exclusion from leaves of absence. The Knussman case in Maryland where a state trooper who was male said, "I'd like child rearing leave," and his supervisor said, I'd have to be dead or dying before I would take that. That's really terrible. Those types of cases are relatively easy, because they again involve loose lips.

Same thing with regard to leaves of absence. There are cases and examples of this where a woman employee says I'd like to leave early a couple of days a week to go pick up my children for child care responsibilities, and there is a male in the workplace who is let go to coach a little league team or a soccer team. And surely if leaves are provided, and if the employees are comparably situated, those B the denial of leave to a woman under those circumstances is discriminatory. But, I want to make clear, similarly situated is a key concept. Because in that example, assume the man is a shift worker, who may or may not have essential duties, but whose absence is not particularly missed on the production line. And the woman is a senior vice president who is involved in the highest level of decisions, and where her absence will end up with a significant interruption in production or in function within the workplace.

Those are different cases. Those people are not similarly situated, and I would suggest that denial of leave to one as opposed to the other is not necessarily unlawful under those circumstances.

And that example brings up a central issue with regard to FRD which is, should a plaintiff claiming discrimination based upon caregiving responsibilities be excused for some reason from proving comparable B that there are comparators of another gender who are treated better. That is the normal analytical model under McDonald Douglas, in a disparate treatment case, requires proof that I as a man am treated differently and less favorably than a woman to whom I am comparing myself, or vice versa. In my view the courts that have analyzed this issue have in all but a few cases concluded that there's no difference in these cases as opposed to a normal inferential Title VII discrimination case. You have to prove that you as a woman plaintiff are treated less favorably than male comparators.

I grant that there are a few cases that appear to dispense with the, give me a male comparator who is treated more favorably. But I would say that those B and this is a point made in my comments B I would say that those cases are loose lips cases, where in fact the proof of discrimination is a direct proof of discrimination; where the employer's supervisors for one reason or another says, "Yeah, I would have promoted you, but you just had a kid." I mean that type of stuff, you don't have to get into comparators to figure out that that's sex discrimination. And the courts haven't had any problems with those cases. But I think that those cases make for perhaps a little bit less crisp analysis. And I would say that as a matter of logic, if someone is relying upon the McDonald Douglas standard inferential model of discrimination, it requires proof that people of another gender or another race have been treated better, and that you are in a comparable situation to them.

I want to spend a moment on the ADA and the associational discrimination. The ADA of course plainly prohibits discrimination against individuals because of their association with people with disabilities. It protects employees from discrimination because, for example, they have a disabled child for whom they wish to care. But again this is not a pure FRD situation, because it applies only to people who are associated with people with disabilities; that is, if we were talking about family responsibility discrimination as such, it would apply to aging parents, not parents with Alzheimers, who might be considered disabled. So it's a different ballgame. Plus, the other aspect of this that's important to bear in mind, is that the courts have been clear, and the Commission has issued guidance on this, that the associational discrimination clause does not entail reasonable accommodation. Reasonable accommodation under the statute is limited to qualified individuals with a disability, and does not extend to the ADA associational discrimination theory. So it's not congruent, your enforcement situation is not congruent with the broader issue of child rearing. It reaches some of it, but not all of it.

I wanted to say, before the red light goes on, that the FRD concept, as I said, makes sense in terms of management training, and encouraging family friendly work place practices. It surely is important for an employer to train its managers to avoid gender, age, race-based stereotypes. It's important for an employer to ensure that its leaves are administered on a gender neutral, race neutral basis. Those are important goals that are very much consistent with Title VII, and as a matter of training, this makes a good deal of sense. It's important for employers to prohibit family responsibility discrimination, not only as a general matter, but also for employers to invoke a Faragher/Ellerth defense, or perhaps a Koldstat defense against punitive damages. And it also makes sense for most of my clients on a human resources level, because most of my clients believe that they've got substantial investments in their employees, and would like to help them harmonize work and family life, as opposed to penalizing them because they have child care responsibilities.

Thank you.

CHAIR EARP: Thank you.

Ms. Williams?

MS. WILLIAMS: Good morning, Madam Chair, Madam Vice Chair, Commissioners Ishimaru and Griffin.

Thank you so much for the opportunity to participate in this meeting today. I wanted to say a few words about the Center for Work Life Law. We employ both management side and defense side employment attorneys to help both employees and employers identify and eliminate family responsibility discrimination.

Family responsibilities discrimination, or FRD, is very simply discrimination against employees based on their obligations to care for family members. It includes pregnancy discrimination, discrimination against mothers and fathers, discrimination against workers caring for sick spouses, ailing parents, and disabled family members. And it's a hot topic in employment law. In the last year alone there have been more than 100 articles published on it including in SHRM's HR magazine, Business Insurance, Kiplinger's, as well as the main stream press. And it's been covered in more than 60 blogs, including many written by defense side employment lawyers. I've spoken about the topic both to plaintiff groups and to management groups, most recently in a Hildebrandt seminar for law firm general counsel.

I will begin by providing some background information, and then talk about common patterns of FRD and the need for policy guidance. My written testimony also offers recommendations for businesses for best practices, but I won't talk about them today.

For several decades the focus in gender discrimination has been on glass ceiling issues that by definition concern primarily professional managerial women. In sharp contrast, employees throughout the social spectrum encounter FRD. Plaintiffs include employees in low wage jobs such as grocery clerks; midlevel jobs such as car saleswomen; blue collar jobs such as police and firefighters; pink collar jobs such as administrative assistants; women in traditionally female professions such as teaching and nursing, as well as executives and attorneys. Plaintiffs include both white women and women of color. In other words many FRD plaintiffs are employees, men and women, for whom opting out is not an option, and some are people for whom losing their job can mean a short descent into poverty.

FRD really stems from workplace-workforce mismatch. Most jobs, most good jobs, still assume an ideal worker who starts to work in early adulthood, and works full time, with availability for overtime, for 40 years straight. This workplace model was designed for a workforce of male breadwinners whose wives took care of family and household matters. And when workplaces are designed rigidly around that model today, because it's really an outdated model, gender stereotypes arise in everyday interactions in the workplace.

These stereotypes have a negative effect on women; 81 percent of women have children, and becoming a mother, as Elizabeth Grossman pointed out, makes gender salient, makes gender jump out at you. And so that even women who haven't encountered problems before they have children, find that they often encounter problems as we've heard time and again today, after they have children.

These same workplace norms actually create problems for fathers as well when they take on a level of caregiving that's traditionally associated with women. Studies document that fathers who even took a short work absence were recommended for fewer rewards and had lower performance ratings. And we're actually aware of one instance in which a man had a vasectomy in order to avoid caregiver discrimination that he thought was jeopardizing his job.

The stereotypes that create the maternal wall for mothers differ from the stereotypes most lawyers are familiar with in several important ways. First, in sharp contract to glass ceiling stereotypes, which are typically subtle and implicit, bias against mothers is often open and explicit. Social scientists have documented that the most prominent form of caregiving, motherhood, is a key trigger for gender stereotyping. And people generally know now not to say, this is not a suitable job for a mother. But they don't know often not to say this is not B they know not to say this is not a suitable job for a woman, but they still often do say this is not a suitable job for a mother.

Maternal wall stereotyping today is so open because a lot of people don't realize that it's discrimination, and pointing that out is one key role for EEOC guidance.

Second, unlike racial stereotypes, stereotypes of mothers sometimes have a positive valence, whereas racial stereotypes tend to be uniformly negative, maternal wall stereotypes may at first seem flattering. An example is the expectation that a good mother is always available to her children, which gives rise to statements such as, "this is no job for someone with little ones at home." So this kind of stereotyping, which is called role incongruity, starts out with a very positive stereotype of a good mother, but it ultimately sends the message that no mother is a desirable employee, and that's very characteristic of this type of stereotyping.

Finally, lawyers assumptions that stereotypes reflect overbroad generalizations, which is a vision of stereotypes that stems from the 1970s equal protection cases, is just confusing in this context. When most B while what most lawyers do not realize is that stereotypes can function not only as overbroad generalizations that an individual woman will conform to a stereotype; stereotypes can also disadvantage women who do what women traditionally do.

Take a classic maternal wall case, Kerzer v. Kingly Manufacturing. There, Kerzer did what most women do: she got pregnant. But she was stereotyped nonetheless because her employer commented that her pregnancy, "was a sign that she was lazy," and fired her. The stereotyping here stemmed not from an overbroad generalization, but from negative competence and commitment assumptions that are culturally intertwined with motherhood. And these assumptions are extremely strong.

A 2005 study showed that mothers, who are 44 percent less likely to be hired, were offered an average of $11,000 less in salary and held to higher performance and higher punctuality standards. And those are the kinds of stereotypes that feed the marginalization that we have heard so much about today.

I'm not going to say much about the ADA association clause. It is only to say that as with other forms of FRD the discrimination here can be quite open, as when an employer informed a mother with twins and a Downs syndrome son, that her son made her, "unpromotable." Policy guidance can help inform employers that that kind of statement is discriminatory.

There has been a 400 percent increase in FRD in the last decade. And these cases have a sharply higher success rate for plaintiffs than do other forms of employment discrimination cases. We've documented over 1,000 cases, almost 600 since 2000, so no wonder employers and their lawyers have begun to worry about the scope of their potential liability.

To make matters worse, FRD litigation is complex, and as has been noted, cases arise under 17 different statutory and common law theories.

All of this makes life very difficult for employers, who are not in a position to protect themselves from FRD through the kind of checklists that instruct human resource professionals on how to avoid potential lawsuits. That's why some defense side employment lawyers believe that guidance would be helpful to their clients. And I quote one, Judith Keys, of Davis, Wright, Tremaine, in my testimony.

We are also seeing a lot of employment cases that don't settle, but should, because the management side counsel don't know how to evaluate the strength of the case they are faced with. We view all of this as evidence of the need for policy guidance. So we would urge the Commission to issue guidance to first of all define FRD, including a short list of the common ways that it arises, such as refusing to hire women with children; not promoting mothers on the assumption they wouldn't want to have increased responsibilities; not giving mothers challenging assignments on the assumption they won't travel or want long hours; viewing a father who is actively involved in child care as unambitious and reducing his level of responsibility; terminating a pregnant woman so she can't use the company's paid maternity leave; making harassing comments or giving undesirable or difficult work schedules to mothers; taking away plum assignments or perks or terminating a woman who is caring for an ill or dying parent, on the assumption that they will put family before work.

Secondly, we would also urge the Commission to issue policy guidance that highlights and clarifies recent holdings in FRD cases, such as that stereotyping of mothers is gender discrimination; that FRD cases typically are brought under Title VII, not as sex plus cases, but as straight line gender discrimination cases.

I see a red light. Can I have two more minutes?

CHAIR EARP: Yes.

MS. WILLIAMS: Actually, maybe less.

Where a plaintiff shows evidence that a personnel action has been taken on sex stereotypes, there is no need to show a similarly situated employee who is treated differently, because they have already proven the gender discrimination. Title VII also does not require special treatment of family caregivers, and this is an important point, only that they be treated the same as employees with caregiving responsibilities.

Also, that employers who have received a complaint of discrimination from an employee need to be aware that unlawful retaliation can include actions that ordinarily would be lawful, such as rescinding a flex schedule. There was a race discrimination case in which there was alleged retaliation rescinding a flex schedule. Caregiver bias also can occur even if employers act on stereotypes they believe are in the best interest of the employee. This is a very important point, because there is very widespread confusion. The best practice is simple: just ask the employee what he or she wants.

Harassment based on family responsibilities also shows up in the cases. And finally routine pregnancy tests, which we hear about very very commonly in low wage work. In one case a woman was required to give evidence that she had had her menstrual period before she returned. This is a violation of privacy, and using the information from those pregnancy tests is a violation of the PDA, and it's common among low wage workers.

In conclusion the sharp rise in employers potential FRD liability makes the moment ripe for EEOC to issue guidance. Such guidance would help employees access competent representation, and would help employers who are currently frankly confused about what they can do to avoid lawsuits.

Once again, I thank you for the opportunity to testify today.

CHAIR EARP: Thank you.

Vice Chair?

VICE CHAIR SILVERMAN: First of all, I just want to thank both of our witnesses. I mean both your written and oral testimony is very thoughtful.

Professor Williams, yours really sets out some things for the Commission to think about. Obviously you've been giving these issues a lot of thought over the years, and where we can play a role. And it was incredibly practical advice, so I appreciate that.

And Mr. Fasman, your testimony talked about where to draw the lines, which is something that we always struggle with here at the Commission. So I just wanted to start off by saying that.

One legal concept that you both talked about in your written testimony, and I know at least Professor Williams talked about, was the sex plus theory. And both of you talked about why this should or should not apply here. And I'm just not as clear on this issue, so could you elaborate on that a little bit for me, and tell me why courts should not apply this in caregiver cases?

MS. WILLIAMS: Should I start?

VICE CHAIR SILVERMAN: Sure.

MS. WILLIAMS: Sex plus is really an outdated concept dating back to the >70s. There has in the past five years arisen a social psychology literature showing that motherhood is one of the key triggers for gender discrimination. And so these are just straight out gender discrimination cases.

And in fact two out of the three cases that Mr. Fasman cites in his section on sex plus are actually not sex plus cases. One, Santiago Ramos, doesn't mention sex plus at all, and one, the Back case, explicitly rejects the sex plus approach in this context.

MR. FASMAN: I agree. It's always interesting, I find myself agreeing with Professor Williams. I found myself agreeing at an ADA seminar with her associate, Ms. Kelvert as well. I think the sex plus theory has always been difficult to understand and difficult to apply. I think it doesn't add anything to the analysis of these cases. I think it's gender discrimination, and I think the question is, how do you prove gender discrimination. You can prove it through statements. You can prove it through the inferential McDonald Douglas test. These are straight out cases, and I think they ought to be analyzed just that way.

VICE CHAIR SILVERMAN: Elaborating on that, many of the caregiver discrimination cases, as you have talked about, has direct evidence of sex bias, or as you call it, Professor Williams, loose lips; statements from management that women who are working mothers are lazy, or who are pregnant are lazy, both of which are pretty hard to understand; and incompetent, or that it's impossible to be a good mother and have this job. Well, in the absence of those type of statements, or of comparator evidence, what kind of evidence could establish that discrimination against a caregiver is sex based?

MS. WILLIAMS: Well, I mean, again, these are standard sex based cases. So some of them are pretext cases, where Santiago Ramos in fact is a pretext case; where the reason that an employer gave for his action was held by the court to be a pretext. And so basically any kind of pattern of proof that you would see in a standard Title VII context you would see in these kinds of cases as well. As you note the remarkable thing is that there is so much direct evidence in these cases. That's one of the reasons why this sort of cries out for the EEOC to take action.

That said, as things go on, I suspect this kind of bias, which is now so unbelievably open, will get more subtle, and we'll begin to see sort of the more pattern B the circumstantial evidence cases that we're more familiar with in for example the race context.

VICE CHAIR SILVERMAN: Mr. Fasman, do you have anything..?

MR. FASMAN: I think that's exactly right too. I think the answer is that you could prove B I mean there are basically two models that are normally employed. One is direct proof of discrimination; one is the McDonald Douglas inferential discrimination.

You know, as these B as people are trained, as people understand things better, certainly you'll see that direct evidence cases will tend to disappear. That may mean that some of the discrimination disappears as well. But certainly in the absence of direct evidence, it's comparator evidence just as you would have in any normal Title VII case.

MS. WILLIAMS: If I can jump in one more time, Mr. Fasman seems to be talking about Back v. Hastings on Hudson, and very explicitly in the 2nd Circuit, in Back v. Hastings on Hudson, there was a holding that you may not need comparator evidence if you have evidence of gender stereotyping. Now evidence of gender stereotyping can be direct evidence B loose lips B but it also can be circumstantial evidence. And that actually has been B that principal has been embraced by Judge Richard Posner in a case which, if you can believe it, is called Lust v. Sealy Mattress.

CHAIR EARP: It's irony.

(Laughter)

MR. FASMAN: I have to add one more thing to that, and that is that I've never understood what stereotyping adds to the discussion either. I mean it's evidence of discrimination or it isn't. If you are making stereotypical assumptions about people on the basis of their gender, on the basis of their age, on the basis of their race, that's discrimination. So I'm very uncomfortable with those types of terms. I don't understand them. I've litigated cases where they are involved, and I'm not sure I ever understood the theory behind it.

VICE CHAIR SILVERMAN: What if there's no comparator, no direct evidence, but, there is evidence that the person was treated differently after they took leave for caregiving.

Would that alone be enough?

MS. WILLIAMS: Under Back, if it's strong enough, it's strong enough. If you have robust evidence of gender bias, then you have robust evidence of gender bias. Obviously it's easier if you have a comparator, it's easier if you have direct evidence, but people don't always get to litigate easy cases, and Back says that if you B you need to convince us. And if you've convinced us, then we're convinced. That's basically what Back says.

MR. FASMAN: Treated differently than whom? Isn't that the question? Treated differently this year than last year? People are treated differently this year than last year without regard to maternity, without regard to having children.

Certainly if there is a linkage. I mean the plaintiff's burden of proof in these cases is always, can you prove a linkage between the action that you claim is adverse and a protected category? If there is a linkage there, sure, but generally that's implied by saying, not I don't like the assignments I've gotten, but I'm getting worse assignments than people who haven't had children, than people who are not disabled, what have you. So that's the normal range of cases.

MS. WILLIAMS: I mean the other issue is, who's the comparator? Sometimes in these caregiving cases the comparator is the same woman before she had kids. And so it's not always a comparator B we think in gender discrimination, we tend to think of, oh well, where's the man? But remember, these are cases that involve caregivers. They aren't straight men versus women cases. Some of the caregivers in these cases are men.

MR. FASMAN: Conceivably.

CHAIR EARP: Back is a 2nd Circuit case, is that right?

MS. WILLIAMS: Yes.

CHAIR EARP: Is that the majority view of the circuits? Or how split are the circuits? Or what light can you shed on that?

MR. FASMAN: I'm not even sure that's the view of the 2nd Circuit, because in Fisher v. Vassar, they seem to go the other way. Fisher v. Vassar is a marriage case, where there was a question about disparate application of tenure policies, and in that case the plaintiff said, "Well, I've been disadvantaged, as compared, because I took time off for child care leave, as compared to women who didn't do that." And the 2nd Circuit said, "No, men who were treated, who took time off either for child care or for other reasons were treated the same way in terms of tenure progression, and we're not interested, you have to come back with comparables." So I don't even know if it's the case in the 2nd Circuit.

I will say this: there is so much analytical confusion B I think we would agree on this B there is so much analytical confusion surrounding sex plus and gender stereotyping and the law, I recently read the new chapter of the Grossman book on sex discrimination, which is hundreds of pages long, and I mean when you read that you say to yourself, I'm not sure if they understand what they're talking about. They may resolve the cases properly, but the theories underlying it are very difficult to understand where the courts are on a lot of these types of issues.

CHAIR EARP: Ms. Williams, do you have a comment about…?

MS. WILLIAMS: I would just say that the evidence in Fisher v. Vassar wasn't strong enough, and with respect to the analytical confusion here, I actually don't see it.

I think that sex plus is an outdated theory, and I think that the new social psychology is showing that very clearly, and that there is a very clear trend away for that reason.

With respect to stereotyping, I think there is some confusion because of the 1970s equal protection cases, which imply that stereotyping always means an overgeneralization, and therefore, can only help women who are behaving like a traditional man. That's only one way in which stereotyping works, the social psychologists tell us.

Another way that stereotyping works is that it bundles demographically characteristic things about women B they have children for example B with negative competence assumptions. That's just a different way stereotyping works. And I think once lawyers begin to feel more comfortable with this social psychology literature, that which is confusing now to some people, will begin to be cleared up. But I think the EEOC can also play a role in clearing that up, that confusion.

CHAIR EARP: So is it your view that the federal circuits, the majority view of the federal circuits is that expressed in Back?

MS. WILLIAMS: I don't think the federal circuits have really B to my knowledge the other circuits have not really addressed the Back issue. The 7th Circuit is all over this, the 2nd Circuit is all over this in terms of the stereotyping.

VICE CHAIR SILVERMAN: Dr. Boushey talked about, at least in her written testimony, fathers' involvement in parenting is increasing. Now as we approach situations where men and women are equal coparents, to the extent we're ever equal, what impact will this have on the legal theories of caregiver discrimination, i.e. how much caregiver's discrimination theory hinges on these current stereotypes or the fact that women are predominantly the caregivers in their families?

I was wondering if you could answer that, Professor Williams?

MS. WILLIAMS: Again, this changes the way we have traditionally thought about stereotypes as lawyers, although all of this is very old news in social psychology. Men are stereotyped too in these caregiver discriminations. If an employer basically is policing women out of breadwinner roles B you know, marginalizing mothers B and policing men into breadwinner roles, and so if a man takes parental leave, you know, Ms. Grossman was saying, they hear a lot of reports. We talk to a lot of men too who try to take parental leave, and are told in no uncertain terms, sometimes formally, "that's just silly," but many times informally, that's unbelievably common, that your wife should do it. Telling a man your wife should do it is evidence of gender stereotyping. It's telling him that he should conform to the employer's image of what a real man is. That's just not a role for an employer. So there is a tremendous amount of stereotyping of men surrounding these issues. And as that Gen X and Gen Y and the millennials come up, this is getting bubbling hot.

VICE CHAIR SILVERMAN: The millennials come after Gen Y?

MS. WILLIAMS: The millennials are the ones that are so young we don't like to think about them.

VICE CHAIR SILVERMAN: Good to know.

All right, thank you.

CHAIR EARP: Commissioner Ishimaru?

COMMISSIONER ISHIMARU: Part of my reason for wanting to do a meeting or meetings on this is that part of it seems so clear and so easy, and as Mr. Fasman points out, the loose lips cases, of course they're violations of Title VII. And yet when I look at what the EEOC has done over the years, and how we have treated these charges that have come in, it appears to me that very little has come out of this agency; that it doesn't fit our model. And, I was wondering, Professor Williams, if you had some thoughts on the types of questions or information our investigators should be asking to figure out whether there is a violation of the statutes we enforce in the case of caregiver discrimination.

MS. WILLIAMS: I think that's an important question, because we assume this is stopped, but we have had a number of different reports, which I've discussed both with Commissioner Silverman and with Commissioner Ishimaru of people being turned away from the EEOC with claims that are valid claims, and that's one of the reasons why guidance is so important again. I mean very simply the question is, were you treated differently after you got pregnant, or returned from maternity leave, or had another B were caring for another family member, or including had to go B or adopted a flex schedule in order to care for a family member?

So they're just straight Title VII cases. Were you treated differently?

COMMISSIONER ISHIMARU: Yes, so it's frankly a matter of our people not being thrown off by the fact that it's a caregiver discrimination case, but in fact it may be a gender discrimination case, and how do you handle a gender discrimination?

MS. WILLIAMS: It is a gender discrimination case, but too often B and I assume this isn't true of EEOC investigators B people say, oh well, parenthood is not a protected category, so this is not B this isn't covered. And unfortunately that still happens.

COMMISSIONER ISHIMARU: In all the cases you've looked at with your Work Life Law project, have you seen any difference with regards to the gender of the supervisor? Or does this type of discrimination cross gender lines?

MS. WILLIAMS: Well, the social psychology literature says that women can enforce stereotypes against women just as men can. So that's what the literature says. The HR literature says that what correlates is having a supervisor who has caregiving responsibilities. So it's not based on sex. It's based on whether you've sort of been there. And that's what B and that's what we find. There are also sometimes really troubling dynamics among different generations of women over these issues, so that sometimes women of my generation, and we did it the man's way, sort of look at younger women and say, you know, these young ladies just don't know what it takes. And sometimes they don't know what it takes, but sometimes that also can go over into gender stereotyping.

COMMISSIONER ISHIMARU: So just as in the case of a racial discrimination case where you have same race discrimination, the same thing could happen here?

MS. WILLIAMS: Actually it's more common in the gender context. The studies show that race on race discrimination does exist, but in some contexts women actually stereotype women more than men do.

COMMISSIONER ISHIMARU: And in the cases you've looked at, is there a certain sector where this happens where a majority of the workers are women? Or is it a minority of the workers being women? Is it high women jobs? Low women jobs? Or is it across the board?

MS. WILLIAMS: It's all women. I mean that's what's so striking about this in comparison to gender B to glass ceiling stereotyping. I mean we have grocery clerks, policewomen, computer saleswomen, nurses' aides, you name it, it's all over. It's white collar, blue collar, pink collar, and high level professionals.

COMMISSIONER ISHIMARU: When you talk to employers about this, and both of you do this, what sort of push back do you get from the employer? What do they say? Do they say that we just can't do this? Or we can do it to a certain degree, or we can do it for certain jobs and not others? Is there B I'm curious, because for employers you want to keep your employees. You bring them into your system, you want to keep them as long as you can, you want to reward good workers who work for you. What sort of push back do you get back?

MR. FASMAN: I find myself at meetings like this listening to the horror stories and reading the cases that are the horror stories and saying, I must represent a completely different group of employers. Because bear in mind, my clients, by and large, there is no push back, they're horrified. If you had a loose lips case, I can think of 10 clients that I do work for who would say, "why that's totally ridiculous!" We're not trying that case, that's not our policy, never has been our policy; we're not training people well enough, forget it, just settle it, and let's move on and let's put this back in our training. So I mean I don't get much push back for it.

COMMISSIONER ISHIMARU: For your clients do you find that they may offer flexibility for some types of jobs and not others, high paying jobs versus low paying jobs?

MR. FASMAN: Well, it depends. I mean that obviously is a question of the function of the job. If you have a production line where you're producing computer chips, it's hard to say, well, we're going to have complete flexibility, we'll have flex scheduling, where the chips are coming down. It's possible to do that, maybe less possible to do that than with a corporate legal job where if you're not there in the EEOC position statement isn't written out that afternoon, maybe you can write it at home after the kids go to sleep. When you have a production line those are different issues. Same thing in groceries or places where people have to be present; it's harder to have flex time. But I don't think that I've seen employers who have said, well, we'll do it at this level but not at that level. It's really job specific more than anything else.

COMMISSIONER ISHIMARU: I see. You've dealt with employers sort of not in the litigation mode, as I would assume Mr. Fasman sees people sort of in crisis far too often.

MR. FASMAN: Far too often.

COMMISSIONER ISHIMARU: But you've talked to them, Professor Williams, in sort of this theoretical mode of how can you make this better I'm assuming.

MS. WILLIAMS: We talk to them in a very practical mode. I mean the Project for Attorney Retention has for seven years developed best practices and a model policy. And we work with employers all the time. So I mean we talk about B we've extensively documented the business case for workplace flexibility. This is a little bit different from FRD. I mean they're related, but we're now getting into sort of a different topic. But there is a very robust business case for workplace flexibility. Attrition is extraordinarily expensive for people, and we work with them on that. There are a lot of proven best practices, and that's not only for professionals. For example, Mr. Fasman is talking about somebody on a factory line. Well you can't have somebody on flex time on a factory line, but there is no reason why someone on a factory line has to work four, five, eight-hour days. Some people can work three eight-hour days; some people can work two eight-hour days. And in fact it's done in Germany and Holland. And now there is a lot of innovative work being done around the country. You design workplace flexibility differently for people in nonprofessional jobs, but you can do it in those kinds of jobs as well.

VICE CHAIR SILVERMAN: Because of the FLSA.

MS. WILLIAMS: I'm sorry?

VICE CHAIR SILVERMAN: The Fair Labor Standards Act's application to it?

MS. WILLIAMS: Well, in California we have even stricter issues.

CHAIR EARP: And my question similar was, do you do work with unions that may dictate the hours that workers can work?

MS. WILLIAMS: We actually, the centerpiece of Work Life Law is that we work with everybody. We work with employees, employers, we work with unions, we work with plaintiff's side lawyers, management's side lawyers; we work with the whole kit and caboodle, because it's not an easy problem.

I mean as I always say, I'm an employer. And you know these are not easy issues. Employers have to struggle with these issues. And you know we all struggle with them, but we might as well struggle with them together.

MR. FASMAN: One of the issues that's interesting, and I believe one of the pieces that your center put out is the unions' role in these issues and in negotiating more flexible policies, telecommuting, all these other issues. And unions, some do, some don't. It's an interesting dynamic, because it's important in some workplaces, it's not even union specific. It may be important in a particular workplace, it may be unimportant in another workplace. I don't think the unions' role has been one way or the other, sometimes it's ameliorative and sometimes it's not.

COMMISSIONER ISHIMARU: Let me ask Professor Williams one final question. Obviously not all adverse actions against employees with caregiving responsibilities are covered by Title VII. Where do you see the line? Where do you draw the line between what's covered by Title VII and what's not?

MS. WILLIAMS: I think it's pretty clear. Obviously not every problem a parent has is covered by Title VII, that's crystal clear. For example, Title VII doesn't require that an employer give part-time schedules to everybody who needs them. That's very very clear. Now if you work with people, you see situations where part-time schedules and flexibility is being given to a number of people for a number of reasons, but never to mothers, that's a different situation. And it's very common.

Title VII doesn't require that an employer give paid leave to mothers, fathers, or elephants for that matter, that's just not the role of Title VII. And I'd just pick up one thing from Mr. Fasman's comments, FRD advocates have asserted that those on family-linked leaves of absence should be insulated from normal personnel actions. I don't know who he's referring to there, but no one should be insulated from normal personnel actions. You know, as they say, again, I'm an employer. I have an interest in this. I don't run a social service agency. I run an organization that's trying to accomplish something. And employers need workers. On the other hand employers also need to be fair and balanced and not penalize people because of doing what any responsible family member would do.

COMMISSIONER ISHIMARU: Let me thank the panel. I've heard about Mr. Fasman for years. It's really a pleasure to have him come here today. And I've known Professor Williams for years. And it's really a treat to have her come.

Thank you, Madam Chair.

CHAIR EARP: Commissioner Griffin?

COMMISSIONER GRIFFIN: Thank you both.

Mr. Fasman, you obviously worked with a lot of employers, and I'm sure that you find a lot of the employers you work with voluntarily deciding to create family friendly workplaces. What are some of the reasons they give, and what are your discussions like about why they're doing it?

MR. FASMAN: Oh, I think that there are a number of employers who look at this in much the way that Professor Williams was talking about. When you have high skilled jobs, or not even high skilled, you can still have people on a work line who are very high skilled; employers make a substantial investment. A lot of my clients look and say, this is human capital, we've invested in these people, we've trained them, we know they're not only technically competent; but they also meet the nontechnical issues that often make a good employee B regular attendance, this that and the other thing; you know the range of nontechnical issues. And once you find good employees you want to keep them.

So I think that's done a lot of the time. I have employers that run the gamut. I think that I have some of my clients who are not particularly family friendly or who haven't tumbled to this yet. I have one client who runs an onsite Montessori school for its workers, just to provide child care for workers who have small children.

COMMISSIONER GRIFFIN: And do they pay for it too?

MR. FASMAN: It's split. It's half an employee benefit. I will say one thing, and that is, that that particular employer had two family linked charges against it, which is very interesting stuff. We asked the Commission's investigator to come out and check it out.

COMMISSIONER GRIFFIN: Interesting, thank you.

Ms. Williams, you talked about mandatory pregnancy tests, and I don't know if I'm the only one here, but I've never heard of that before. I'm fascinated. Who do they do this to? Is there like a specific type of industry that does this?

MS. WILLIAMS: It's low wage women. One of the sources of these is the Employment Justice Center here in D.C., since I lived in D.C. for so many years. And sometimes there's just B there's just a drug test that's once a month, and if people fail the drug test, then somehow magically they move on.

It is shocking, but it's also B our impression is, we haven't done a study B we're not studiers; we're lawyers B but we hear persistent reports of that.

COMMISSIONER GRIFFIN: Have you heard of any particular industry that does it? Besides you're just saying low wage.

MS. WILLIAMS: I just think it's low wage. I mean pregnancy discrimination in the context of low wage workers is breathtakingly open.

COMMISSIONER GRIFFIN: Yes, I think you're right.

Thank you both very much.

CHAIR EARP: I have a couple of very quick questions for both of you to respond to.

How do we avoid creating the perception of two classes of women, since these issues in the workplace tend to fall heavier on women? The women who have no children, single, the Millennials, the Gen Xers, the Gen Yers, who haven't gotten into it yet, and other women who have them?

MS. WILLIAMS: I think that's such an important issue. Is that for me or Mr. Fasman?

CHAIR EARP: I would like to hear from both of you.

MS. WILLIAMS: Do you want to start?

MR. FASMAN: I'm happy to start, but I don't know why that should be a particular problem. It strikes me that these are roles, as Professor Williams said, 81 percent of women become pregnant at some point. I don't think that if there's discrimination against a group of women who eventually will include perhaps many of the people who would say, oh well, you're treating her better because she has children, I don't see that as being a huge problem. But you may have a bigger issue.

MS. WILLIAMS: Well, there is a perception sometimes, and I think one of the problems is that people B workers in the U.S. work longer hours than in any other industrialized country, and, so a lot of people are very stretched and strained. And sometimes employers let someone go part-time, and they don't replace the hours; at which point they're dumping the extra hours on someone who's already stretched and strained. And that can lead to a backlash against the moms, although as we work with employers, we say, you know, that's really a management issue. The solution's not to eliminate family friendly policies, the solution is to replace the hours when you allow someone to go part-time.

The other part of this is that, you know, gender discrimination takes many forms. And one of the forms it takes against women without children is that sometimes they're treated like they don't have an arm and a leg. They're treated as defective women. And so they take that B that creates a certain furor. And sometimes that's directed against the moms.

The third thing that happens, I think, is that women who, like me, did it the old fashioned way, sometimes look at the younger women and say, it was tough, and I had to choose, and you're going to have to choose too. And so I think women are so deeply invested and frankly hurt by these issues that I think there's just a lot of anger and hurt that starts rolling around. And as we all know, when that happens, it tends to settle on whoever is closest.

MR. FASMAN: That's a broader issue, I thought. I'm approaching this from your enforcement posture, not from the sociological perspective, but that's quite true; all of those issues are out there. The question is, can EEOC do anything about it, and should you worry about it in terms of an enforcement guidance. I'm not sure that you should. But those are big league issues; no question.

MS. WILLIAMS: I think that the place that the EEOC can have such an important impact, I think enforcement guidance is very important, but of course it's only part of the puzzle. I think you folks can really have a very profound impact on disseminating best practices to employers. That's the kind of issue that is a best practice issue, and we and others have worked very extensively with employers to teach them how to head off these problems at the pass.

VICE CHAIR SILVERMAN: I think we struggle with that at the agency, where we can get involved in best practices. And there are best practices in how to best comply with Title VII, ADA, et cetera. And then there's best practices on how to be a good employer, or how to have an inclusive workplace, so that you will have more women, more people with disabilities, more minorities in your workforce. And we struggle to know when we can go into that other area without overstepping our bounds as an enforcement agency.

CHAIR EARP: I think that's right. I think it's very important for us to get information from a number of sources. Ideally you'd like to have workplaces that are just good places for men, women, minorities, everybody to work; which means you don't design policies that allow the people, men or women with children, to leave everyday at 3:00 o'clock but those who do not have them, sit there and feel as if they're not a part of the team.

The last question that I would like both of you to react to is one of personal responsibility. If I'm pregnant in January, and I know that the baby is going to come nine months later, what responsibility do I have during that time to arrange my child care, to take care of those issues that are likely to impact my job? Someone who has a vasectomy because presumably they're working in an environment so hostile that they think that's the only choice that they can make, how or even why should something like that, a personal choice, influence public policy?

And let me start with you, Mr. Fasman?

MR. FASMAN: Well, the first question was easier to answer, although maybe the second one is, it shouldn't. Somebody who's working in an environment that is so hostile that you feel that you have to have a vasectomy, I mean that's a very bizarre, odd, way off case. I'm not sure that should influence your policy at all.

But the former question is interesting, because it goes to something that I think is implicit in this discussion but has not been made explicit this morning, and that is, no matter what you do as the EEOC, no matter what any of us would do in terms of saying, wouldn't it be great to balance worklife and family life, it's tough. And if you know that you are with child, or if your wife is with child and you're going to be a caregiver, there are issues you have to consider. What are we going to do when this child comes along that have to be looked at? I don't know if it's a question of responsibility to the employer so much as it's a responsibility to yourself in saying, how am I going to do this.

And it's difficult to do. I'm fortunate; I've raised three beautiful kids who still talk to me, which is nice. And it was tough along the way. It was hard to figure out. I should say that none of them are lawyers, and that perhaps is a signal in and of itself, but it's hard to figure out. So it's a personal responsibility issue too. That's not to justify or to excuse in anyway discrimination. And I don't mean it to sound that way, but there are other issues here in terms of work-life family balance that are very, very difficult that I think are beyond the scope of the hearing.

COMMISSIONER GRIFFIN: Can I just add too, as an employer for 10 years, and I had lots of women attorneys who got pregnant while working for me, when they would come in and tell me what they thought they were going to do in months two, three or four, you know what I learned from experience? I would say, you haven't got a clue. So I want you to go have this baby, take the maternity leave that we provide, and then tell me what you think you want to do, because it's going to change. And I think that's what a good employer says is, I have enough experience to know that you don't know, and come back and tell me when you do.

CHAIR EARP: Ms. Williams, I'll give you the final word.

MS. WILLIAMS: The thoughts I had stem from, are studies of union arbitrations, and where unionized workers have work-family conflicts. And what the arbitrators hold workers to is having B making attempts to have regular child care and backup care. That said, those too often fail. But I think what you're talking about is a situation where somebody doesn't bother to arrange child care or something. And I think if you're a worker you're going to have to show up, and so people do have to take personal responsibility, and I think that's very important. That said, they shouldn't have to take personal responsibility in a discriminatory environment, and I really think that's what we're talking about here today.

CHAIR EARP: I think so too.

Thank you very much, Dr. Boushey, Ms. Tucker, Liz, Mr. Fasman, Ms. Williams, thank you so much.

We anticipate having a follow up meeting May 23rd, to talk about best practices, how this could play where the rubber actually meets the road.

We're going to recess until 2:30, at which time we'll come back together to finish business unrelated to balancing family and work life.

Thank you.

(Whereupon at 12:15 p.m. the proceeding in the above-entitled matter went off the record to return on the record at 2:45 p.m.)

HEADQUARTERS PROJECT MANAGEMENT AND RELOCATION SERVICES CONTRACT

CHAIR EARP: Welcome back everyone, we will now begin discussion on the Headquarters Relocation Services Contract. Our Chief Financial Officer, Jeff Smith and George Betters, Director of the Resource Management Division in the Office of the Chief Financial Officer and Administrative Services are here.

George, can we start with you?

MR. BETTERS: Thank you.

Good morning, Madam Chair, Madam Vice Chair, Commissioner Ishimaru, Commissioner Griffin, guests and colleagues.

My name is George Betters. I am the Director of the Resource Management Division, Office of the Chief Financial Officer. I am joined by Jeffrey Smith, Chief Financial Officer.

As the Chair mentioned, this presentation concerns a procurement request before the Commission for project management and relocation services for Headquarters.

The current Headquarters building lease will expire on July 31st, 2008. The space requirements were approved by the previous Chair, Cari Dominguez, and submitted to GSA on June 24th, 2005. GSA, which is responsible for satisfying our space requirements through the competitive lease process, a market survey evaluation of buildings was conducted on July 13th, 2006, by EEOC and GSA officials.

During the market survey, seven properties, including the Headquarters building were surveyed. Five properties were solicited and submitted proposals to GSA.

GSA is in the process of evaluating the proposals, and expects to sign a lease agreement in May of 2007.

The contractor will be responsible for providing relocation planning and support services to EEOC which includes pre and post-move management and administration. The contractor will perform project management; comprehensive management support for projects covering design and layout; reconfigurations; relocation; and resizing of office spaces and similar facilities.

EEOC does not have staff with the specialized skills necessary to manage the Headquarters relocation project. Some of the labor categories required include architects, electrical and mechanical engineers, interior space designers, and construction project management. Specialized skills require staff or a contractor to have the ability to review and comment on construction documents, and the ability to monitor the actual construction of the space build out.

Without this contract we will be unable to proceed with new planning. We have no option to renew the lease at the current location.

Thank you for the opportunity to present this requirement. Your approval is requested.

CHAIR EARP: Jeff, is there anything you want to add?

MR. SMITH: No.

CHAIR EARP: Madam Legal Counsel, is there anything you want to add?

MS. MASTROIANNI: Simply that the Procurement Integrity Act would preclude any discussion of source selection information if anybody has it; that would be the bidders and the proposed costs and any locations, et cetera.

CHAIR EARP: Okay, thank you.

We will start with questions, comments, starting with the Vice Chair.

VICE CHAIR SILVERMAN: I'm just unfamiliar with the process, so I had two questions that I can think of right now.

What's a market survey? In other words does GSA pick the properties to be part of it, or did the properties themselves sign up?

MR. BETTERS: GSA sends out a solicitation package after they review properties that can meet our proposal, our requirements. In other words, we send GSA our requirements package. They look at the requirements, and then they solicit property owners that they feel can meet those requirements.

VICE CHAIR SILVERMAN: So they sort of pick out property B

MR. BETTERS: During the market survey, yes, we look at the actual space and survey.

VICE CHAIR SILVERMAN: But we were limited by the original seven properties that GSA began looking at at the beginning?

MR. BETTERS: We looked at…

VICE CHAIR SILVERMAN: I thought the market survey was for more?

MR. BETTERS: Seven proposals were submitted to GSA. They determined that five were acceptable.

VICE CHAIR SILVERMAN: And do agencies have any say in that?

MR. BETTERS: On the market survey?

VICE CHAIR SILVERMAN: Yes.

MR. BETTERS: Well, we look at accessibility issues. We have a check list we use.

VICE CHAIR SILVERMAN: Accessibility meaning?

MR. BETTERS: To determine which buildings can submit proposals to GSA.

VICE CHAIR SILVERMAN: But GSA starts the process rolling by picking out who to send the market survey to? I mean they're the ones that sort of limit the pool of where we're looking at to begin with, and then we can only limit it further from there.

MR. BETTERS: Yes.

VICE CHAIR SILVERMAN: Okay, and do agencies ever say to them, we don't think that's a broad enough pool? Or is that not within our right?

MR. BETTERS: We looked at properties that we defined in the CBD, the central business district.

VICE CHAIR SILVERMAN: Let's get to that.

What is the definition of central business district?

COMMISSIONER ISHIMARU: Could I follow up on your question that I don't think was answered?

If the agency isn't satisfied with the proposals that come in, can the agency go back to GSA and say, we'd like more properties to consider than say, in this case, the five that are in front of us? Or are we limited to the five that GSA presents to us?

MR. BETTERS: We are limited to those five, unless we can make a case to disqualify them.

VICE CHAIR SILVERMAN: You have to disqualify all five?

MR. BETTERS: Yes, and GSA won't let us disqualify them if they can meet the minimum requirements.

COMMISSIONER ISHIMARU: But that's the only way we could get a larger pool if the agency wasn't B if the procurement people in the agency were not satisfied with the five in front of them; that you would have to disqualify all five and then GSA would then have to go out and resolicit I guess would be the term?

MR. BETTERS: We wouldn't disqualify; GSA would have to make that determination.

COMMISSIONER ISHIMARU: No, I understand that, but if the agency hypothetically was not satisfied with the five that was presented to it after the solicitation was made, we would tell GSA that we're not satisfied on all five and give our reasons for disqualifying all five. And that's the only way that GSA could broaden the pool after that point if all five were disqualified?

MR. BETTERS: Yes.

COMMISSIONER ISHIMARU: So if we only disqualified two,

VICE CHAIR SILVERMAN: … and we only had three?

COMMISSIONER ISHIMARU: …we would be stuck with three?

MR. BETTERS: Yes.

CHAIR EARP: I want to just kind of warn the Commissioners that I think questions about GSA are not really before us today. The only thing that's before us today is the Relocation Services Contract.

COMMISSIONER ISHIMARU: I appreciate that, Madam Chair, but the problem here, as I have tried to explain to people offline, is that in order for us to make a reasoned vote on the relocation contract B

CHAIR EARP: But we still have an issue regarding what we put in notice to the public about what was going to be discussed today.

COMMISSIONER ISHIMARU: Well, perhaps then it's premature, because it sounds like certainly three of four members have questions about how the process actually works.

I appreciate the Sunshine Act problems, but it's a very technical process that you and I don't deal with for better or worse.

CHAIR EARP: I think Commissioners have to vote their conscience. If you have problems about a part of the process that is not before us today, you can't, because you have a problem with it, decide that it's going to be discussed when it's not noticed.

COMMISSIONER GRIFFIN: But Madam Chair, the problem is, this is the only opportunity through the vote on this contract to have that discussion. This is the only vehicle, as I understand it, that I'm going to have to actually have this discussion. And you can't just B you can't just include us when you want this vote on this one contract.

CHAIR EARP: I don't think that there is any attempt to exclude the Commissioners. Commissioners have a role and the Chair has a role. And this is one of those situations where the two abut each other. You don't have a role in the entire process, but you do have a role in the expenditure of funds beyond $100,000.

COMMISSIONER ISHIMARU: Well, just to make the record clear then, as a matter of fact, the Office of the Chair B not to take this personally against you B

CHAIR EARP: I don't take it personally.

COMMISSIONER ISHIMARU: But the Chair of the Commission makes the decision B the Chair, in the grandest term of the Chair and the procurement staff, make the decision of where to move and how to move. And that the Commissioners have no role B

VICE CHAIR SILVERMAN: And we get to vote on paying for the movers.

COMMISSIONER ISHIMARU: Well, but then members of the Commission do not have a role in the selection B I just want that clear on the record, that this is the responsibility of the Chair to make this call as to where we move.

CHAIR EARP: It's my understanding that in consultation with GSA, it is the Chair's managerial administrative discretion to make decisions about leases.

COMMISSIONER ISHIMARU: Right. And I'm not challenging that. I just want to make that clear for the record, and that the role of the members of the Commission outside of the Chair is to vote on contracts in excess of $100,000.

CHAIR EARP: That's my understanding.

COMMISSIONER ISHIMARU: And that the Commissioners have no role outside of the Chair, because the Chair's a Commissioner too, but that the non-Chair Commissioners have no role in the selection of where we move. This is all within the responsibility of the Chair under the Chair's administrative authority?

CHAIR EARP: That's my understanding.

Let me just ask Legal Counsel, is that traditionally how the roles have been construed?

MS. MASTROIANNI: Yes. Yes, Madam Chair.

CHAIR EARP: So Vice Chair, I think you have the floor on questions.

COMMISSIONER ISHIMARU: But can I ask a clarifying, no, no, no, a clarifying procedural question? Are you saying that as a matter of order, that questions beyond the technical requirements of this contract that's in front of us, are the only thing that's in order?

CHAIR EARP: I don't think I can say that conclusively, because I don't know exactly where the questions are going to go, but I think that we have issues regarding germaneness, and we also have issues regarding the Sunshine Act.

And one of the things that I'm fairly clear about is, a discussion about GSA is beyond what we've noticed. I mean you're pretty good, so maybe you'll ask some questions that don't fall outside the scope.

COMMISSIONER ISHIMARU: No, no, it isn't a blanket denial.

CHAIR EARP: No, we're talking right now specifically about GSA, our relationship with GSA, what they've done, what their role is, I think is outside the scope of why we're here today.

COMMISSIONER ISHIMARU: So you would rule that discussion out of order?

CHAIR EARP: Yes.

COMMISSIONER ISHIMARU: Okay. Madam Chair, as my staff notes to me, there is a discussion of the GSA process in the memorandum that was provided to us. So would that make it in order to talk about it because it was in a package provided to us?

VICE CHAIR SILVERMAN: Well, that's why I asked about the market survey. Because I underlined it as I was reading it here, and I was trying to understand how that process evolved. One could see why you could say that's not about voting on this contract, except that it's within the background information right here in front of it. So, trying to understand how we got here --

CHAIR EARP: Is supporting documentation, Madam Legal Counsel, considered germane if it's not part of what's noticed, but it's a part of the background?

MS. MASTROIANNI: It would not be in our view a violation of the Sunshine Act to discuss matters that are in this presentation memorandum. On the other hand we would run afoul of the Sunshine Act and various other laws possibly if there is a discussion for example of rumored locations, but that's the sort of thing that we cannot address, but the process which is outlined in the presentation memorandum can be discussed.

CHAIR EARP: Does the process include the questions Commissioner Ishimaru was asking about how we interact with GSA, what we should tell them, whether or not we're dissatisfied?

MS. MASTROIANNI: Recommendations about what we should tell GSA are not appropriate in this context. However, understanding what the process is, what the market survey is, what B how this process works is appropriate.

VICE CHAIR SILVERMAN: Or what kind of input we could give GSA, without going into what it was; whether or not we have any say within the processes, understanding the processes, is what I was asking about.

COMMISSIONER ISHIMARU: This was a hypothetical question following up on the Vice Chair's wondering of how the process worked. I don't know what the recommendation was, I'm not asking. It's what I was trying to get clear as what the process is in an agency's interaction with GSA; not necessarily ours. I'm just trying to understand the process.

MS. MASTROIANNI: Understanding the process is not a problem under the Sunshine Act, the discussion of it is.

CHAIR EARP: Okay, and with that, Commissioner, can we go back to the Vice Chair's comments,

COMMISSIONER ISHIMARU: …the Vice Chair's comments, absolutely.

CHAIR EARP:.. she has the floor, and allow her to proceed with her questions.

VICE CHAIR SILVERMAN: Okay, so as I understand what you were saying about the process is that we give the specs to GSA, then they go out and they have in their files, what have you, different property ideas; and then they go out and they basically decide who to provide the market survey to.

So by the time we get back from that it's already a selected pool from which we have no say, in terms of who originally they're looking at; is that correct?

MR. BETTERS: Yes, it is.

COMMISSIONER ISHIMARU: Madam Chair, I thought that GSA publishes a B

CHAIR EARP: Commissioner Ishimaru, would you mind if we just kind of stay in order. I promise you, I'm not going to try to rule out of order your questions, but the Vice Chair has the floor.

COMMISSIONER ISHIMARU: Well, but, but, but, it's my understanding of how the process works is that Mr. Betters said yes to the Vice Chair, when in fact the process may be like that. And I just want to be clear for the record that GSA does not have this in their files; that GSA publishes a request for proposals or something like that, where they say, we are looking for X amount of space and list the various requirements, and then venders send in B

CHAIR EARP: Can you not present that when it's your turn? Do I understand that you can't B

COMMISSIONER ISHIMARU: Well, it's my understanding that the answer to the Vice Chair is not correct.

VICE CHAIR SILVERMAN: Do they send out some kind of B without calling it a bid for proposals at the market survey stage, or?

MR. BETTERS: Before the market survey stage, they send an advertisement out to indicate that they're looking for government space.

VICE CHAIR SILVERMAN: When you say send it out, put it in the Federal Register, advertise in the paper?

MR. BETTERS: It would be local newspapers, and it's all B

VICE CHAIR SILVERMAN: And do they pick the pool upon which to send the market survey based on the responses to that and that's how the process works? Having never rented federal space I'm just trying to…

MR. BETTERS: B They make a determination on which buildings that meet our requirements. And then if they determine the buildings that meet our requirements, they send them a solicitation package.

VICE CHAIR SILVERMAN: But the buildings have to approach them first?

MR. BETTERS: Yes. The potential building owners, yes.

VICE CHAIR SILVERMAN: Okay. And that would be the seven that approached them?

MR. BETTERS: That's right.

VICE CHAIR SILVERMAN: Except that wasn't this building part of it B and this building didn't approach them that time?

MR. BETTERS: They didn't, our understanding from GSA they didn't send a proposal in.

VICE CHAIR SILVERMAN: Okay, but they're still part of the market survey?

MR. BETTERS: Yes, they were.

VICE CHAIR SILVERMAN: Okay, I don't really understand that part. But I'm going to move on from there. This doesn't make sense to me.

There's a market survey from people coming into GSA, or it's not. And if this building didn't, maybe it comes as a matter of course since we're in here. But that's a particular property, and I'll move on, except that I'm just trying to understand the process here.

Also I would like to understand, and I think it is discussed in the solicitation, Washington, D.C. central business district and how that's defined; and, whether or not we have any requirements at this agency, particularly since this contract includes our D.C. office, beyond just being in a GSA definition of Washington, D.C. central business district, so that's a two-part question.

MR. BETTERS: Can you repeat the question?

VICE CHAIR SILVERMAN: Sure, sorry, I apologize. Do you know what GSA's definition of central business district is? I mean is there a specific definition? I'd like to see it.

MR. BETTERS: Yes, there is. I don't have it before me though.

VICE CHAIR SILVERMAN: Okay. Do we as a government agency have anything beyond that that we can require, so long as it is in this GSA defined, whatever that may be, central business district, then that's that. There is no other B I mean not what we need within the space, but what we need without the space in order to serve on B particularly the people that come to the District of Columbia office.

MR. BETTERS: Well, if I understand your question, if an agency determines that they want to move outside the boundaries of the central business district, then they have to justify that to GSA.

VICE CHAIR SILVERMAN: Do you know how often that happens?

MR. BETTERS: It happens, but GSA is highly unlikely to grant those waivers. We had situations like that in our field offices, where we tried to justify space out of the CBD, the Central Business District. And unless there was no space available in the CBD, they'd want you to stay within that radius.

VICE CHAIR SILVERMAN: So you B your department goes through this process again and again and again with our 52 offices?

MR. BETTERS: Yes.

VICE CHAIR SILVERMAN: And every time they'll come back after doing the survey with the properties, and then we move forward according to that? We never have gone back to them unless we can object about the central business district and said none of those are going to work?

MR. BETTERS: Well, we've sent exceptions in to spaces that were offered in the past and to field offices.

VICE CHAIR SILVERMAN: Based on what?

MR. BETTERS: Based on a co-location issue with other federal agencies at one time, when we determined we couldn't be co-located in the same building with ATF and some other law enforcement agencies, DHS.

VICE CHAIR SILVERMAN: Did we ever object to something that was technically in a GSA-defined central business district but not necessarily B

MR. BETTERS: Well, we objected to space in a federal building, and we were overruled.

VICE CHAIR SILVERMAN: So only based on the co-location issue?

MR. BETTERS: Well, the co-location issue, potential move to a federal building, we objected to that, and we were overruled by GSA on that. So we have sent objections in before.

VICE CHAIR SILVERMAN: We've never won with GSA?

MR. BETTERS: We have.

VICE CHAIR SILVERMAN: Okay. Those are the questions that I have thought of so far.

CHAIR EARP: Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Thank you, Madam Chair.

I must say that I am disappointed that this vote is in front of us today. I received at 2 o'clock a briefing, or the start of a briefing, from the Chief Operating Officer and the Chief Financial Officer that I must say, Madam Chair, started to answer my questions, but did not answer my questions on a variety of issues, some of which may not be germane to this meeting.

Given that the authority to move the building is within the Chair's prerogative, I understand that, as I did with our former colleague who was the Chair preceding you; and knowing that we have the prerogative to vote on any contract in excess of $100,000; I wanted to understand how the financial impact of the move would go, and what the impact would be. And as was pointed out to me, the financial implications of federal budgeting are complicated, and certainly something that I do not believe was adequately explained to me in the half hour that I had with the COO and the CFO, and frankly, I wish that we could spend more time so that some of us, some members of this body, could understand what the implications are of where the money is coming from for the move; what the tradeoffs are; how much money is coming out of this year's budget; what will not be funded for this year because of the funding for the move; and those discussions were begun, but certainly to my mind were not adequately addressed. And I must say that I understand that we have to move because our lease is up, and will move. But the question of where this money comes from is an unanswered question in my mind. And I know that if I start talking about the numbers here you will rule me out of order, and I appreciate that. But I think that we all would be better served if we have an understanding of how this works, and see paper on how it works. I appreciate the fact, Madam Chair, that you've been very generous in providing the members of the Commission with more information about the budgetary process than some of your predecessors. It's a new day, and I appreciate that, but what I find disappointing in all this is that an attempt by a number of us to try to understand in good faith how we're paying for this and what the tradeoffs are has been rebuffed. And I am disappointed that we're at this position, and I'll reserve the balance of my time, because I'm not sure if Mr. Smith or Mr. Betters could or would answer my questions, or whether they'd be out of order.

CHAIR EARP: Commissioner, I'm disappointed too, because at the beginning of the Fiscal Year, I gave you and the other Commissioners the 2007 operating plan. So for you to say today that this was the first opportunity you had to understand how the budget works; I think that's disingenuous. Not only have you had more information, you've had information in a timely fashion. You actually could have started looking at the budget process last October when I gave you the 2007 operating plan.

COMMISSIONER ISHIMARU: Madam Chair, it's my understanding that the operating plan has been revised and we have not received a copy of that, even though everyone else in the agency has seen it; but members of the Commission have not been supplied with this.

And it's also my understanding that the Chief Operating Officer, solicited from members of the executive leadership team how to spend some $4 million that has been freed up, again, within your prerogative on how to spend the money, but certainly, members of the Commission have not been supplied with how the money will be spent. Again, as I raised with your predecessor, the question of where we spend the money, sets policy for the agency.

CHAIR EARP: The plan that was given out last fall is still the plan that we're operating under. You can look at the percentages. The same amount will go to staff, the same amount will go to paying salaries, the same amount will go to covering real estate cost and rent cost.

COMMISSIONER ISHIMARU: So there's been no reallocation of money?

CHAIR EARP: No fundamental change, no.

COMMISSIONER ISHIMARU: No, no, no, no, that wasn't my question. The question is, is it the same plan as you said as was given to us the one that was dated October 1st? Is that the same plan?

CHAIR EARP: It's the same plan. It's the same plan. How we're going to operate; what categories we're going to spend our money in; it's the same plan.

COMMISSIONER ISHIMARU: And unlike the briefings that I have received from the staff that midway through the year there is a new B that the operating plan is revisited, the operating budget is revisited to reallocate money to deal with areas that aren't spending the money, and to move money around when money gets freed up, isn't so?

CHAIR EARP: The plan is the same. You can only spend it in so many categories. How many dollars are available, that changes on a daily basis. But the plan is the same. What we're going to spend our money on is fixed. And I don't want to spend the time having a debate with you, Commissioner Ishimaru. I just basically want the record to reflect that today was not the only opportunity that Commissioners have had to understand how our budget process operates.

COMMISSIONER ISHIMARU: Well, Madam Chair, with all due respect, we've been talking about having a meeting on the budget since the start of your tenure. We have not had that meeting. We have not had any further briefing on it, except in the context of trying to understand this contract that's in front of us. And I would welcome that, and I was told that we were going to do it last fall, and we did not. And I appreciate your openness and willingness to share with us information, because I think that's been admirable, but I'm trying to understand this to see where the resources are going. And I frankly wish that I was not in this position of raising this at a meeting.

CHAIR EARP: Okay, thank you.

COMMISSIONER ISHIMARU: I'll reserve the balance of my time.

CHAIR EARP: Okay. Commissioner Griffin.

COMMISSIONER GRIFFIN: George, just to be clear, has any agency that you know of ever challenged GSA's designation of what constitutes a central business district?

MR. BETTERS: Well, we certainly haven't done it here at EEOC.

COMMISSIONER GRIFFIN: We have not?

MR. BETTERS: For any of our Headquarters that I'm aware of.

COMMISSIONER GRIFFIN: For Headquarters? How about for any of our offices across the country?

MR. BETTERS: We have.

COMMISSIONER GRIFFIN: We have?

MR. BETTERS: Yes.

COMMISSIONER GRIFFIN: Okay. So it is possible to do that?

MR. BETTERS: Yes.

COMMISSIONER GRIFFIN: Okay.

When we talk about this contract for this B I forget what it's called B the Project Management and Relocation Services B when we talk about best value, what are we talking about?

MR. BETTERS: Best value as I understand it is, B that's a procurement term B is considering costs and other factors in making the determination on making an award.

This particular contract is best value, so it's cost and other considerations.

MR. SMITH: If I could amplify on that, first, and this applies to any contract process, proposals are evaluated based on their technical merits and ranked. Separately, the cost for each of the bidders is ranked. Then it's up to the evaluation team to determine tradeoffs between the technical merits and the cost. This is a concept that the government introduced five to seven years ago to get away from always awarding contracts to the lowest cost bidder, which turned out to be not the best value for the government.

COMMISSIONER GRIFFIN: So it gives you more discretion in who to pick?

MR. SMITH: Yes.

COMMISSIONER GRIFFIN: Now in awarding this contract, did we already put something out to bid before this? I mean how does that process work? Did we solicit something, how do we know it's going to cost that amount of money? How does that work?

MR. SMITH: First, the sponsoring organization, in this case the Chief Financial Officer, has to write up what the requirements are, and provide a government cost estimate for the procurement process to begin.

COMMISSIONER GRIFFIN: And we just do that in our office B I mean in your office?

MR. SMITH: Yes.

COMMISSIONER GRIFFIN: You don't seek any outside B

MR. SMITH: For the requirements and the government cost estimates, no, we don't use any outside help. Traditionally we don't do that anywhere in the Commission. It comes from the business sponsor.

COMMISSIONER GRIFFIN: Which is you?

MR. SMITH: For this one, yes.

COMMISSIONER GRIFFIN: All right. So my understanding is, once, if we vote for this, then you put something out that says we're looking for a relocation management services, and that's it. You may get 10 bids, you may get 20, but we as a Commission never see that again or vote on that again, right?

MR. SMITH: No, that's right.

COMMISSIONER GRIFFIN: And we're voting for the next B this funding for the next three years, right?

MR. SMITH: Yes, it's presumed B we need a multiyear contract to cover it through the move and post-move matters.

COMMISSIONER GRIFFIN: How do we figure, given that we don't know B technically we don't know the location, we haven't signed a lease, you haven't signed a lease or anything like that B how do you then know what this person is going to face? So I guess it, to me sometimes it feels like the cart before the horse, c-a-r-t B

(Laughter)

COMMISSIONER GRIFFIN: Even as I say it, it sounds funny to me now.

MR. SMITH: Well, it may surprise some of you, but this is not the first time that vendors or the government have moved. Typically you're faced with an open floor plan requiring no demolition, and we're going in with a white board to design the office the way we want it. So whether the floor plate, whether the floor is 10,000 square feet or 100,000 square feet, it doesn't matter. If the requirement is two floors, four floors, six floors, or 10 floors as an example in this building, it's the same skills that are needed to do the job.

COMMISSIONER GRIFFIN: So the person bidding on this has done this before, they know, it doesn't matter.

MR. SMITH: It doesn't matter.

COMMISSIONER GRIFFIN: Okay, well, Madam Chair, like my colleague, Commissioner Ishimaru, I have grave concerns. I think as we started discussing this offline, and the funding for the move, and how we get the funding, and the process by which decisions have been made, and the fact as I stated earlier, this is the only opportunity for me as a Commissioner to weigh in, you know, I have grave concerns about this move overall. And I don't think that those concerns have been satisfied.

CHAIR EARP: I think I understand greatly the way my fellow Commissioners feel, but honestly, I can only say what the prior Chair said to me. When you're sitting here, everything feels and looks differently. So Commissioner Griffin, when you or Commissioner Ishimaru are sitting here some time in >08 or >09, I guarantee you, it's going to feel like you're doing what's in the best interests of the agency even as everyone else believes that you are hiding the ball or otherwise engaged in nefarious conduct.

Let's start a second round? Can we start a second round of questioning, and start with the Vice Chair.

VICE CHAIR SILVERMAN: Less into where the money came from, and more into the background one more time. It says in front of us in the memo that price will be the determining factor in selecting the lease that represents the best value for the EEOC. And in my time in private practice I did some government contracting, and I remember best value can mean lots of different things.

Do the technical merits of the location B not the building itself and what it provides, but where the building is or is not B and how it might affect the current population of the agency, or its customer base, does that factor into this best value argument at all? Or is it that once it's in this central business district, it's fine, and one location is the same as another?

MR. BETTERS: Let me make sure I understand the question. Are you talking about the selection of the building?

VICE CHAIR SILVERMAN: Yes, because it is in the background of the memo, and I'm just trying to understand it.

MR. BETTERS: Not this contractor, the selection of the building?

VICE CHAIR SILVERMAN: Yes, it says the final B prices on the lease and the leases for the building, so I'm asking about the selection of the building.

MR. BETTERS: That would be determined based on the lowest cost.

VICE CHAIR SILVERMAN: And anywhere in the central business district?

MR. BETTERS: Yes.

COMMISSIONER ISHIMARU: So it isn't based on best value.

MR. BETTERS: She's talking about the selection of the building.

VICE CHAIR SILVERMAN: Well, it says best value, best value for EEOC, and that's the part I'm focusing on. Because for EEOC, what is the best value for our agency? Because it does say the decision will be largely economic, but there are certainly factors other than economic when we're making decisions about precise locations.

And I'm just wondering if GSA or you folks who are involved in this process or anybody is watching this, because that is the bigger concern for me. And I recognize that's not directly in front of me, but it is in the background, so I thought I would take this opportunity to just understand the process a little more, because it really does feel like it's being shoved down our throats.

CHAIR EARP: I don't understand, is anyone watching what? What is it that you think is not being watched?

VICE CHAIR SILVERMAN: I don't feel like we're getting enough information or understanding how certain locations could've been picked, when they don't seem to me to be within any of the things that one thinks about when they think of a central business district, so I'm just trying to understand that, how we got there, and whether or not it serves what we have to do.

CHAIR EARP: Do you know where the building is that's been picked?

VICE CHAIR SILVERMAN: No, I don't.

CHAIR EARP: Then how do you know it's not in the central business district?

VICE CHAIR SILVERMAN: Well, exactly, I don't know that, but I do know that there were some choices out there that didn't strike me as being in the central business district. So I heard the rumors, but that's all I've had to go on, Madam Chair, and this is the place I've got to go on it. So pardon me, I do try to defer to the Office of the Chair, but if this is the opportunity to ask, and it's in a memo, I thought I would ask and just try to understand this a little bit more.

CHAIR EARP: No, I have no problem with you asking. I was wondering what it is B

VICE CHAIR SILVERMAN: Who ultimately signs the lease? Is it GSA, or Madam Chair?

MR. SMITH: GSA signs the lease, and just to clarify on your question, when we go through B when GSA goes through the requirements process, they're matching up proposals against our requirements, okay. Yes, there are soft requirements, as you describe, but they're basically looking at written requirements of need from within four blocks of a Metro station; reasonable amenities, however you define reasonable amenities; and the like, but essentially once those bidders that pass through that gate are considered technically acceptable, okay, they're all equal.

COMMISSIONER GRIFFIN: But who, you determine or somebody here determines technically acceptable, right?

MR. SMITH: No, no, this is GSA.

VICE CHAIR SILVERMAN: What are reasonable amenities?

MR. SMITH: We don't see the proposals that come in to GSA other than an executive summary of the buildings that are going to be included in the market survey.

COMMISSIONER GRIFFIN: Do we just take their word for it, and then we tell them to go ahead and sign a lease on our behalf?

MR. SMITH: GSA has the realty specialists and the skills that we pay them to do this. We don't have our own leasing authority here.

COMMISSIONER GRIFFIN: We're paying them?

MR. SMITH: Eight percent industrial fee they are paid on all rents.

CHAIR EARP: GSA is the government's landlord, just like EEOC is the government's expert on employment discrimination law. GSA is the government's expert on real estate.

VICE CHAIR SILVERMAN: There's experts, and then there's give and take in a process. And I guess the problem I'm having, Jeff, is that I don't think there was as much give and take in this process from our end as we're being led to believe.

MR. SMITH: Okay.

VICE CHAIR SILVERMAN: And maybe it's not in front of me, but that is where my issue lies. I just have a hard time believing that we didn't have just a little bit more say or influence.

MR. SMITH: Well, we do that through the requirements package, but just to finish the thought, essentially you're dealing with buildings that pass through the technical wicket, and at that point it's a cost issue. So the buildings aren't given different weight based on their version of reasonable amenities or anything like that.

VICE CHAIR SILVERMAN: Except at the end of the day we could end up in a building in a different location that could cost us more than where we are presently?

MR. SMITH: Oh, I can't speak to that.

VICE CHAIR SILVERMAN: It's possible; I'm not saying we will.

MR. SMITH: Well, first of all, we can't discuss costs, but more importantly, I don't think anybody understands what the cost of this location would be since they didn't bid the job, let alone could we disclose it here. The building's going through a renovation.

COMMISSIONER ISHIMARU: I don't think the Vice Chair is asking you to disclose the cost, but hypothetically,if the rents go up in a city, we would be paying more, like it or not.

MR. SMITH: We could say that about any location, yes.

CHAIR EARP: Do you have other questions, Vice Chair?

VICE CHAIR SILVERMAN: No, I'm done.

COMMISSIONER ISHIMARU: Let me follow up on one of the Vice Chair's questions, though. Once it passes through the technical wicket, as you put it, at that point it sounds to me like it's no longer the value contract, the best value contract; it's based solely at that point after people are qualified based on price. So you want to go with the lowest price of all these various properties that are qualified; is that right?

COMMISSIONER GRIFFIN: Are you talking about the building or this contract? Because this contract is best value.

MR. SMITH: Yes.

COMMISSIONER GRIFFIN: The building is best price.

MR. SMITH: Yes.

COMMISSIONER ISHIMARU: Once it's qualified.

COMMISSIONER GRIFFIN: Yes, the building is, look on Page 2, the final decision will be largely economic, and they're talking about the building, not this contract. Price will be the determining factor in selecting the lease that represents B then it says the best value for EEOC, but the offeror's proposal that meets EEOC's space requirements at the lowest overall cost will receive the lease agreement.

COMMISSIONER ISHIMARU: So once they're qualified and meet the technical qualifications that we laid out and GSA certified B

COMMISSIONER GRIFFIN: … and they're the cheapest.

COMMISSIONER ISHIMARU: … and they're the cheapest, that's the winner, yes. I have the floor?

CHAIR EARP: You have the floor.

COMMISSIONER ISHIMARU: Thank you, Madam Chair.

Let me raise my fundamental concern with the process we have in front of us, not the leasing process itself because we've talked about that, but it's my understanding that the move itself will cost in the neighborhood of $5 million spread out over a number of years. And $5 million in our fiscal condition is a lot of money, and I was told that this year the amount we would be allocating for the move would be $3 million.

What I've tried to understand before this meeting began, while we were in a briefing, as I discussed earlier, was where this $3 million will be coming from, and what will be traded off against the $3 million. And we were starting to understand that, or it was starting to be explained to us in an oral presentation, but I don't know what the tradeoff is. I don't know what we're not doing this year or where that $3 million is going. And I would think that the Commission itself should know where we're making the cuts to make that happen. And I appreciate the explanations that I got, but frankly, the explanations had been partial at best, and I wish we had more time so we could understand where the costs for the move will come from, and where what we're trading off to make this happen, so I'll reserve the balance of my time for the next round.

CHAIR EARP: Commissioner Griffin.

COMMISSIONER GRIFFIN: You know, I really don't have any more questions.

CHAIR EARP: Do you have additional questions, Vice Chair?

VICE CHAIR SILVERMAN: I don't have a question. I just have a statement, or am I only allowed to ask questions?

CHAIR EARP: You can make comments.

VICE CHAIR SILVERMAN: Okay. I guess the bottom line is that we're now faced with the contract in front of us that says, we need to move, and here's the cost of the movers, and that's not a position that I would like to be in here today. I'd like to be talking about some of the other factors, but that's not in front of me, so it just makes this vote all the more challenging. That's all; thank you.

COMMISSIONER ISHIMARU: I have a hypothetical question, a contracting question. Assuming that this contract is not approved by the Commission, are there ways you can circumvent the Commission's authority to approve contracts in excess of $100,000? Might you be able to contract under $100,000 and break this into pieces so it never appears before the Commission again?

MR. SMITH: I suppose someone without any integrity might suggest that, but it won't happen on my watch.

COMMISSIONER ISHIMARU: So if we don't approve this contract, we will come back another day and hopefully approve it after our questions are answered that there will be no attempt to try to circumvent the Commission's authority to approve contracts over $100,000?

MR. SMITH: Well, consistent with the fact that the lease is not voted on by the Commission, and the reason is is because GSA is the contracting officer. There is another path that the contract can take, yes.

COMMISSIONER ISHIMARU: So the contract then, hypothetically, could go where the costs of these services could be rolled up in a contract with GSA for the rent, if you will, of the building?

MR. SMITH: No, they would approach this as just a stand-alone service which we would reimburse them for through a reimbursable work authorization. It's a service they offer.

COMMISSIONER ISHIMARU: And even though it's over $100,000 it would be not subject to Commission approval?

MR. SMITH: Right.

COMMISSIONER ISHIMARU: So you would be circumventing the will of the members of the Commission not to approve it if in fact it was not approved?

MR. SMITH: No, past practices of our RWAs have never come before the Commission.

COMMISSIONER ISHIMARU: What's a RWA?

MR. SMITH: a Reimbursable Work Authorization.

COMMISSIONER ISHIMARU: Have there been situations where the Commission itself has explicitly refused to enter into a contract and an RWA was entered into that basically did the same thing as the contract that was not approved?

MR. SMITH: Not that I'm aware of.

COMMISSIONER ISHIMARU: But you would be so inclined to do that if so directed?

MR. SMITH: You asked if there was another option. I'm just saying that an RWA is another option.

COMMISSIONER ISHIMARU: Right.

MR. SMITH: And it's been past practice, the RWAs have not come before the Commission.

For example when we moved the Washington Field Office into the building, …

COMMISSIONER ISHIMARU: Right.

MR. SMITH: … that was funded through an RWA that I think approached about a million dollars to do the demolition and the reconstruction and the move.

COMMISSIONER ISHIMARU: But there was no explicit Commission vote disapproving something like that?

MR. SMITH: No.

VICE CHAIR SILVERMAN: Can I expound on that?

COMMISSIONER ISHIMARU: Absolutely.

VICE CHAIR SILVERMAN: Does the EEOC end up having to pay if we were to go this other route an additional money, the 8 percent, to the GSA?

MR. SMITH: There would be a fee if you went that route.

VICE CHAIR SILVERMAN: So it would cost us ultimately more money if they were to do it for the same… for the move? B

MR. SMITH: Yeah, essentially they're collecting a G&A fee, or an overhead fee B

VICE CHAIR SILVERMAN: What's G&A?

MR. SMITH: General and administrative expense, I'm sorry.

VICE CHAIR SILVERMAN: Okay, what would happen B what happens, putting aside Stuart's example, if the Commission does not vote, or comes to B if we don't vote to approve the contract today, what is that going to mean for us in terms of our bottom line, regardless of where the money came from?

MR. SMITH: Potentially we can't get out of the building on time.

VICE CHAIR SILVERMAN: And what would happen then?

MR. SMITH: I can't predict.

VICE CHAIR SILVERMAN: Well, is there a clause in our current lease that says if we are not out by B when is our current lease over?

MR. SMITH: July 31st of 2008.

VICE CHAIR SILVERMAN: So what happens under our current lease if we're not out by July 31st B

MR. SMITH: I don't have an answer to that question. We need to be out. Would there be penalties? I would predict so.

VICE CHAIR SILVERMAN: I mean, I know from visiting some of our field offices that they've stayed beyond when their lease ended, so it does happen I imagine.

MR. SMITH: It does, but rarely if at all B George can correct me B is most if not all landlords in our field offices are very very happy to keep us and want to pick up another 10-year lease. So extensions are pretty routine there.

VICE CHAIR SILVERMAN: Why don't you think our current landlords wants to keep us?

MR. SMITH: Maybe we were bad tenants. They make a business decision. This is a 20-year old building, and we all know it needs work.

CHAIR EARP: Any other discussion?

Hearing none, I'd like to bring the discussion to a close and call for a voice vote. And starting with seniority B

COMMISSIONER ISHIMARU: Point of order, Madam Chair, there's no motion on the table.

CHAIR EARP: I don't think we need one.

MS. MASTROIANNI: The item is on the agenda, Commissioner Ishimaru. It is already on the agenda. You don't, we don't need a motion to put it on the agenda, although in the past we've sometimes used the term B we've made a motion, but it is not necessary. It is already on the agenda as indicated in the notice.

COMMISSIONER ISHIMARU: What section of Robert's Rules does that come under?

MS. MASTROIANNI: I need to talk to my expert behind me.

(Pause)

MS. MASTROIANNI: We can get back to you.

COMMISSIONER ISHIMARU: No, no, no, please, let's find it now please, before we move forward, so we make sure that we're clear on what section of Robert's Rules this is under.

CHAIR EARP: Well, given the fact that it's my understanding that the Commission doesn't closely adhere to Robert's Rules, that it's a modified version, let me ask, is there a motion to vote on the Project Management and Relocation Services Contract?

VICE CHAIR SILVERMAN: So moved.

CHAIR EARP: Is there a second?

I second. The motion being properly moved and seconded, I'd like to call for B

COMMISSIONER ISHIMARU: It's subject to discussion again though, is my understanding?

And again, if I could make a brief statement before we actually vote, Madam Chair, I must say that I am disappointed that there has not been more of an effort to try to resolve the various questions that we have raised outside of a meeting; that I think you've seen, and certainly I have seen, that three of the four members of the Commission are really struggling with trying to understand the fundamentals of what this is about. And that to have an uninformed or less than fully informed vote does not serve us well, and I regret that we're in this situation. I happen to believe that the underlying contract that's in front of us needs to happen in order for us to move, but I cannot in good conscience vote for that contract not understanding fundamental questions about where the money is coming from to pay for this move. And we were starting on that process, but frankly, I was given a half hour to try to resolve it, and there was limited paper provided to me. And in fact I was told that if we didn't come down to the meeting they would proceed without us, even with the absence of a quorum, and that we would in fact be stymied by the fact that the meeting was in recess; and therefore someone would have to be here to object to the lack of a quorum. I think frankly we would be better served if we had members understanding what was in front of them and the implications. And that we are not well served by having what appears to be most of us having fundamental questions about what we're doing.

VICE CHAIR SILVERMAN: So you're not objecting to paying for the move, you're objecting to where the money is coming from for the move?

Are you saying that your issues would be resolved if we had the meeting on the budget? Or are you saying, because you're saying we know we have to move, we're not going to pick up our stuff and move it ourselves. So I'm just trying to understand where your objection is.

COMMISSIONER ISHIMARU: I'm trying to understand where the money is coming from, and what we are not going to do for this year. And it's my view that there are a lot of good programs that we have voted on on a unanimous basis, the systemic program, the embrace of E-RACE, and others that we want to move forward. Yet I am told time and time again that the agency has no money; that Mr. Cooper's litigation support budget is less B you know, is a very B a relatively small amount of money, certainly less than the $5 million we're going to be spending to move the agency.

I have my priorities. Other members of the Commission have their priorities. And I am trying to understand where this money is coming from, and what we're going to have to give up.

CHAIR EARP: Commissioner, I respect your concerns. I respect the concerns of all my fellow Commissioners.

I'm sorry that you feel disappointed, but I am going to rule that the discussion about the broader budget and how we're going to fund the move is not before us. In order to get back to the point that we were, with a motion duly made and seconded, and discussion B

COMMISSIONER ISHIMARU: I believe a point of order is appropriate at this point, and that we would vote to sustain your point of order, that I would object to you cutting off debate.

CHAIR EARP: The debate is not germane. Your budget priorities, your budget priorities have nothing to do with this contract that's before us today.

COMMISSIONER ISHIMARU: But then as a matter of procedure you've ruled me out of order, and I would raise a point of order that you weren't correct, which is subject to a vote to sustain your point of order.

Am I not correct? Or are you still looking up the section to…B

MS. MASTROIANNI: At this point where we are, and I'm sorry for taking a few minutes to sort it out, the Chair has made a ruling that the discussion, overall budget discussion, is not germane, and is not appropriate under the Sunshine Act. Is that correct, Madam Chair?

CHAIR EARP: Correct.

MS. MASTROIANNI: Does that characterize it correctly?

That is the Chair's ruling. If someone, a member of the Commission, would like to appeal the Chair's ruling, they can do so, and then there's a vote on that, and it would take a majority to overrule the Chair's ruling.

CHAIR EARP: So Commissioner Ishimaru is appealing, is that right?

COMMISSIONER ISHIMARU: Well, it's a question of whether we should waste our time to do that, because I can only imagine where the votes will come down. So if you want to rule me out of order.

CHAIR EARP: I would just like you to make your point so that we can close the discussion and get a vote. I understand where the Commissioners come down on this. I'd just like to get a vote so that we can move on.

COMMISSIONER ISHIMARU: I'll withdraw any point of order that I may have raised.

CHAIR EARP: Dare I ask, is there anything else before we try to get a vote on this?

Can we get a voice vote, starting with the Vice Chair, to vote yes or no on approving the Headquarters Project Management and Relocation Services Contract?

VICE CHAIR SILVERMAN: Yes.

CHAIR EARP: Thank you.

Commissioner Ishimaru?

COMMISSIONER ISHIMARU: No.

CHAIR EARP: Thank you.

Commissioner Griffin?

COMMISSIONER GRIFFIN: No.

CHAIR EARP: And I would vote yes. The vote is 2-2, it fails1. I want to thank everyone for being here.

Do I hear a motion to adjourn the meeting?

VICE CHAIR SILVERMAN: So moved.

CHAIR EARP: Second?

COMMISSIONER GRIFFIN: Second.

CHAIR EARP: All in favor?

(Chorus of ayes)

CHAIR EARP: Thank you.

(Whereupon at 3:47 p.m. the proceeding in the above-entitled matter was adjourned.)

Footnotes

1) On May 11, 2007, Commissioner Griffin moved to reconsider the vote on the Headquarters Project Management and Relocation Services Contract. That motion was APPROVED that day by a 4-0 vote under Notation Vote # 2007_NLT00181. The Commission then APPROVED the Headquarters Project Management and Relocation Services Contract on May 14, 2007, by a 4-0 vote under Notation Vote # 2007_NLT00183.

This page was last modified on May 23, 2007.