Statement of Diane A. Seltzer, Esquire

Meeting of February 28, 2007, Washington D.C. to Launch E-Race Initiative

Good Morning, Chairwoman Earp, Vice Chair Silverman, and Commissioners.

My name is Diane Seltzer, and I am an employment and civil rights lawyer who practices in the metropolitan Washington, D.C. area. I represent both employers and employees in connection with all aspects of employment law. I am also a member of the adjunct faculty at American University's Washington College of Law, where I teach the upper level course, Employment Law: The Employment Relationship. I am currently serving a three year term as the Co-Chair of the Employment and Labor Relations Committee in the ABA's Section of Litigation.

I would like to thank the Commission for inviting me to participate in today's proceedings in general, and to speak on this panel, "Winning the Talent Contest: Tests, Background Checks, Credit Reports, and other Employer Efforts to Hire the Best Employees"in particular. I appreciate the opportunity to provide input on existing and emerging issues, best practices for employers and employees, and recommended strategies for the Commission to undertake to eradicate discrimination, particularly with respect to race and color.

As a practitioner who firmly believes that there are many good employers and that there are many good employees, and that neither one is the sole source of all conflicts that arise in the workplace, I come to work each day with an open mind about how workplace problems arise -- and without the blinders of ideology that can make resolving those problems so much more difficult. From time to time, some of my colleagues have questioned how I can "do both sides." My answer is always the same: when one looks at the facts of a specific matter, one can decide its merit or lack thereof. If we accept the generalization that all employers are perfect and do no wrong, we lose the opportunity to correct the problems at their source when that source truly is the employer. Similarly, if we accept the premise that all employees are ideal and never contribute to their workplace problems, we miss the chance to improve our workforce and to teach people how to be the most successful and productive employees they can be. I simply cannot resist the opportunity to advise a nonprofit organization that provides services to persons with disabilities when they ask for my help in drafting EEO policies. This demonstrates the organization's desire to comply with relevant laws, and I admire that and want to be a part of it. On the other hand, when a person comes to my office telling me that the county government will not hire him as a firefighter because he has monocular vision, I am going to make sure his rights are protected and, I hope, vindicated – by me.

(1) The Progress That Racial Minorities Have Made in the Workplace.

I am a big fan of photographer Bruce Davidson. Several books of his work grace my living room coffee table -- including Time of Change: Civil Rights Photographs 1961-1965 (St. Ann's Press, 2002). He received a Guggenheim Fellowship in 1962 to photograph what became a four-year documentation of the Civil Rights Movement. His pictures of what life was like for African-Americans just over forty years ago – in this country – are heartbreaking and yet incredible. Equally amazing are the images of the Freedom Riders, of the activists who marched in Selma, Alabama, and of the car of Viola Liuzzo, a white civil rights worker from Detroit and mother of four who was killed by a Klansman's shotgun blast through her car windshield the night the march ended.

I was born in 1967 and grew up in New York City, always known as the melting pot of this country, if not of the world. Diversity was always a given in my world; it was not until many years later that I understood what was meant by a homogenous neighborhood. Seeing pictures of things I never lived through, and indeed, cannot even imagine were a societal norm, shows me how much progress racial minorities have made in this country – including in the workplace. That Colin Powell and Condoleeza Rice have been, and are, Secretary of State for the United States speaks volumes to the progress that racial minorities have made in the workplace. We look at Ruth Simmons, President of Brown University; Richard Smith, Chairman and Editor in Chief of Newsweek; Frank D. Raines, previous CEO of Fannie Mae; Richard Parsons, Chairman and CEO of AOL-Time Warner, and we see African-Americans who prove this progress. We regard Oprah Winfrey as possibly the most powerful and influential African-American woman in the world today. These are but a few examples of how different this country is from its pre-Civil Rights Act days.

Ignoring the remarkable progress that racial minorities have made in the workplace does a disservice to Dr. Martin Luther King, Jr., to President Lyndon Johnson, and to all of the civil rights leaders and activists -- regardless of their races -- who have led this country away from an intolerable, indefensible expectation and norm of race and color discrimination. If we told Dr. King and his followers of all of the successful, strong African-American leaders in business, government, and community, they surely would believe their efforts have led to fantastic results. But they would not believe their work is done.

Starting with the optimistic premise that recognizes the enormous progress that has been made to date, the proper inquiry for today is, how can employees and employers alike try to do even better than they are already doing in minimizing and eliminating the disparities that still exist in the workplace?

I submit that today, the bulk of the race and color discrimination in the workplace is subtle and not so easily susceptible of proof. For example, an employer might not interview a candidate because s/he associates the candidate's name with people of a certain race or color. She might read the candidate's address on the resume and believe that the city or zip code is heavily populated by persons of a certain race or color and again reject the applicant out of hand. The candidate would never receive an interview and would be left to pure conjecture regarding why he did not get the interview, much less the job.

On the other hand, there are people who do not receive a job offer (or who are terminated from a job) and immediately accuse the employer of unlawful discrimination, even when there is no evidence (not even subtle evidence) that that is the case. Many a job candidate, regardless of her race or color, walks into her interview with a sense of entitlement to the position at hand, and she feels a real sense of indignation when the company does not offer her the job. When pressed for specific, concrete facts that support their allegations of discrimination, these individuals often have none. In fact, they often provide information that indicates that their status as a member of a protected class had nothing to do with the hiring decision. But in an employment-at-will jurisdiction, where there are few remedies to address workplace unfairness, it is not uncommon to attempt to fit a square peg in a round hole, i.e., to call a hiring decision discriminatory when it is not, because that is one of the very few mechanisms available for redressing employment decisions that feel unfair.

Add to this the fact that Court opinions and legislation have not made it easy for an employee to prove discrimination; quite the contrary. Courts generally are not sympathetic to individuals claiming employment discrimination, and judges often write opinions that make it extremely difficult for an employee to proceed to trial. Even if the employee does proceed to trial, the manner in which jury instructions are written and presented can make it quite difficult and complicated for an employee to prevail.

The Courts' interpretations of the civil rights laws are often the biggest barrier an individual faces in proving and redressing discrimination, because if the Courts do not hold employers accountable for unlawful discrimination, two problems result. First, the employer has no incentive not to discriminate, for its chances of prevailing in court are high. Second, the employee correctly believes that it is not worth challenging a discriminatory act, because obtaining relief is too unlikely. This toxic combination all but ensures that discrimination in the workplace will continue. I suggest that not enough attention is being given to the problem of the way Courts have interpreted civil rights laws and of the failure of the legislatures to write legislation that will truly protect the rights of individuals who have been subject to discrimination. Addressing employee conduct and attitudes, as well as employer conduct and attitudes, are two critical parts of the solution; addressing the relevant anti-discrimination legislation and how Courts interpret and apply it is the third, and to often forgotten, critical part.

(2) The Balance That Employers Can Strike in Using Hiring Mechanisms to Acquire the Best Talent, With the Understanding That Employers Do Not Intend Such Mechanisms to Result in Negative Impacts.

There is one philosophy that an employer can use to best ensure that it hires the best candidates in the applicant pool: base the hiring decision on the candidate's merits, personality, and recommendations. An employer can, and will, successfully defend a hiring decision if it can articulate what it was about these three factors that led the employer to offer the candidate a job. The objective factors, found by comparing the applicant's skills, education, experience and other qualifications with the employer's position description, will be job-related and consistent with business necessity. Is this not how one would hire one's physician? If so, should not the same principles apply when hiring an employee?

It is human nature for us to want to surround ourselves with what feels comfortable and familiar to us – including people. For many, homogeny "feels better" than diversity. This preference easily can manifest in hiring decisions. Employers who are seeking certain personality traits in a candidate -- regardless of whether those traits are similar to, or are different from but complementary to -- those of the persons with whom the candidate will be working, are not necessarily engaging in unlawful discrimination. They are expressing a preference for the known rather than the unknown, for the familiar rather than the untried.

But just as people never learn what they are missing when they dine at the same restaurant week after week, or read only mystery novels, or never try a new hairstyle, they never learn what they are missing by hiring a homogenous workforce.

(3) What Employers Can Do To Prevent and/or Correct Any Disparate Impacts Resulting From Such Hiring Mechanisms.

We can try to teach people in general, and employers in particular, that discrimination and prejudice are bad. We can discuss all of the legal consequences of getting "caught" discriminating. But without providing the convincing, underlying reasons why diversity is a valuable asset, we are assured that discrimination will continue. Employers will simply do a cost-benefit analysis in making hiring decisions that may one day be challenged as discriminatory, and they will just play the odds each time they decide not to hire a well qualified minority applicant. Some employers will feel the angst and hope it passes; others will not care.

I submit that employers need to become comfortable with diversity. Rather than believing the company is best served by having a workforce that mirrors (literally) the people in charge, or the people making the hiring decisions, the company needs to find the value in embracing diversity and in the idea that people from different backgrounds can bring different and wonderful assets to the table.

The corporate philosophy to adopt, and the question to answer is, "Here is why diversity is a good thing." Some reasons will be applicable and universal to almost every company that operates in the United States. Also, each company will, upon reflection, be able to find specific reasons why having a diverse workforce will make that particular company better. This analysis, and the answers it produces, are much more powerful and far-reaching than the obvious rote rhetoric that would be given in response to the question, "Here is why discrimination is a bad thing."

I support the suggestions set forth in "Race & Color Discrimination", which Section 15 of the new EEOC Compliance Manual. Specifically, Section 15-IX, which is entitled, "Proactive Prevention", gives examples of best practices including:

• Developing a strong EEO policy (including training employees on the policy, holding managers accountable, and having the top executives of the company embrace the policy);
• Making hiring decisions that are transparent and documented;
• Recruiting, hiring, and promoting from a diverse applicant pool, including implementing measures to obtain candidates from a diverse applicant pool;
• Analyzing the duties, functions and competencies relevant to a given job and writing an accurate, objective job description based on that analysis; and
• Developing employees with appropriate training and mentoring.

A caveat: employers should in no case apply different, and lesser, hiring standards to persons based on their identification as belonging to a racial minority or as being non-white. This is not the cure for discrimination and will only serve to expose the employer to very viable claims of reverse discrimination.

Additional Recommendations

(1) How EEOC Can Most Effectively Utilize Its Resources to Combat Discrimination in the 21st Century, Given Its Subtle Nature.

On a broad level, the EEOC can provide corporate training and can issue policy guidance on the value of diversity. The EEOC should marshal its resources to teach corporate entities the ways in which having a diverse workforce enhances the company in ways that a homogeneous workforce does not, and cannot. If the EEOC can address the underlying root causes of discrimination, and can truly convince employers why having a diverse workforce is an asset, it will be well-utilizing its limited resources in its efforts to combat discrimination.

On the level of a specific case, the EEOC of course cannot be the private attorney general for each aggrieved employee; the resources are not available. It must hire investigators who are familiar with the laws and who have the drive to dig deep into the cases with which they are tasked with investigating. The categorization/prioritization of cases is a wise way to allocate resources. Pre-investigation mediation is an excellent way to utilize its resources, as well.

(2) How EEOC Can Enhance Its Success Rate
At Trial.

I submit that this is a problem with courts and legislatures, not with EEOC legal talent. The EEOC is a force with which to be reckoned and does not, to my knowledge, have a reputation for having a low success rate in its trials.

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Again, thank you for the opportunity to present this statement to you. We are grateful for your hard work and for your interest in hearing from practitioners on this important topic.

This page was last modified on April 9, 2007.