The U.S. Equal Employment Opportunity Commission

Commission Meeting on Race and Color Discrimination of April 19, 2006, Washington D.C.

I. Introduction

Thank you and Good Morning. My name is Jocelyn Frye, General Counsel at the National Partnership for Women & Families (National Partnership). On behalf of the National Partnership and the Leadership Conference on Civil Rights (LCCR or Leadership Conference) employment task force, I want to thank you for the invitation to testify before you today as the commission considers ways to strengthen its work tackling race and color discrimination in the workplace.

The National Partnership has worked for years to expand equal employment opportunity and monitor the enforcement of antidiscrimination laws. We have devoted significant resources to combating gender discrimination in the workplace, and ensuring that enforcement agencies like the Equal Employment Opportunity Commission (EEOC) have the tools necessary to investigate and resolve discrimination claims. The LCCR is the nation's premier civil and human rights coalition. It consists of more than 190 national organizations, and has coordinated the national legislative campaigns on behalf of every major civil rights law since 1957. The LCCR's employment task force, co-chaired by the National Partnership and the United Auto Workers, is comprised of selected LCCR organizations with a shared commitment to equality of opportunity and fair treatment in the workplace for all workers. Together, the National Partnership and the Leadership Conference take great interest in the EEOC's enforcement of civil rights laws, and the strategies the Commission uses to investigate discrimination claims. Thus, we are pleased to participate in today's discussion about race and color discrimination.

The quest for civil rights that ignited a generation decades ago fueled dramatic changes throughout American society. The goal of racial justice sparked a civil rights movement, resulting in groundbreaking laws and policies rooted in fundamental principles of equality, and outlawing a wide range of entrenched discriminatory practices not only around race, but also other factors such as gender and national origin. No where have changes been seen more clearly than in the workplace. Laws prohibiting different forms of employment discrimination have helped transform workplace policies, environments, attitudes, and culture. Jobs previously reserved solely for workers of a particular race or gender have been opened up to candidates from diverse backgrounds. Negative stereotypes and assumptions about the abilities of certain workers because of their race or ethnicity or gender no longer can be used to justify denying different job opportunities to qualified job applicants. These changes have resulted in concrete gains for workers and the workplace, by expanding job opportunities and challenging longstanding barriers to employment ⁽¹⁾.

The Law. The centerpiece of the legal protections underlying these changes can be found in the landmark Civil Rights Act of 1964. Title VII of the 1964 Act prohibits discrimination in employment based on race, color, ethnicity, gender, and religion. It also created the EEOC, charged with a specific mission to enforce key employment discrimination protections. The law, as well as others that later followed, provided a legal mechanism for attacking workplace discrimination, and established a benchmark for employers to fulfill their obligation to maintain workplaces free of discrimination. The resulting gains are demonstrated most clearly by the increased numbers of racial and ethnic minorities and women in a wide variety of occupations, producing greater diversity for example in police and fire departments across the country, in the skilled trades, in the medical and legal professions, in academia, and beyond.

Discrimination Persists. Despite enormous progress in the workplace, however, discrimination remains a persistent reality. The tens of thousands of claims received by the EEOC each year reflect the unfortunate fact that still too many workers face discriminatory practices and attitudes on the job. Of the many charges filed with the EEOC since its inception, the majority have been race discrimination charges,1 typically constituting 30-35% of the charges received by the Commission each year. In FY2005, for example, the EEOC received 26,740 race discrimination charges, representing 35.5% of the overall number of charges received.2 These numbers make clear that, more than forty years after the EEOC's creation, racial discrimination in employment remains a central enforcement challenge facing the agency. These numbers also illustrate why it is important to incorporate concrete measures of how well the agency investigates and resolves allegations of race/color discrimination into any assessment of EEOC's effectiveness.

EEOC Compliance Manual Chapter on Race and Color Discrimination. The release of an updated chapter on race and color discrimination for the EEOC's compliance manual is an important development, particularly in light of the high number of claims received each year alleging race/color discrimination. It is critical that EEOC investigators and attorneys have a clear understanding of the legal parameters governing race and color discrimination, the breadth of available investigative tools, and the most effective enforcement strategies. Moreover, EEOC must be committed to using every mechanism at its disposal to ensure a comprehensive, multifaceted approach to tackling race/color discrimination claims.

III. Combating and Preventing Race and Color

Discrimination

At the time of the passage of the Civil Rights Act of 1964, it was not uncommon to see segregated job listings, advertising jobs exclusively reserved for Whites or African Americans, or men or women. The 1964 Civil Rights Act fundamentally changed the workplace landscape, making these types of explicit discriminatory barriers impermissible. But even with changes in the law, the task of eliminating long-ingrained practices, out-dated stereotypes, and deeply held perceptions about workers from different backgrounds has remained much more difficult and challenging. Race and color discrimination continue to impose significant barriers for far too many workers seeking to find and retain employment:

• Despite enormous progress, racial and ethnic minorities remain underrepresented in the highest levels of management and the highest paying jobs, frequently lacking access to the same type of advancement opportunities as their White counterparts ⁽²⁾.
• Plaintiffs seeking to pursue race and/or color discrimination claims increasingly face courts that are unsympathetic to employment discrimination and race discrimination charges, and are less likely to rule in favor of plaintiffs filing such claims.
• Many plaintiffs are unaware or confused about the distinctions between race discrimination and color discrimination, and the relevant standards of proof needed to successfully pursue these types of claims.
• Many women of color in the workforce face a double burden, confronting discriminatory attitudes and practices because of their race and their gender. Yet courts often are unwilling to recognize these combined form of discrimination claims, preferring instead to analyze claims based solely on one factor such as race.
• Many plaintiffs have limited resources that hinder their ability to challenge more complex practices, such as systemic employment practices that affect large groups of employees.
• Plaintiffs often lack access to the information necessary to tackle glass ceiling barriers and discrimination in promotions.

One need only look as far as recent EEOC settlements to see the wide range of racially discriminatory practices that continue to infect the workplace – from the most overt, egregious acts of discrimination ⁽³⁾ to subtler practices that appear neutral but yet have a discriminatory effect ⁽⁴⁾. In short, race and/or color remain potent factors that can affect the type of job a worker gets, how that worker is treated on the job, how that worker is evaluated by supervisors and colleagues, and whether that worker will have a meaningful opportunity to advance up the career ladder. Crafting an effective strategy to combat and prevent race and color discrimination, thus, must include efforts to gains a comprehensive understanding of different workplace practices and their impact on different workers, how discrimination problems are handled in the workplace, and what happens when charges are filed with the EEOC.

A. An Analysis of Recent EEOC Data

Who is Filing Race Discrimination Charges With the EEOC?

In 2004, the National Partnership undertook an analysis of previously unpublished EEOC discrimination charge data from FY1992 to FY2003 broken down by race, ethnicity, and gender to learn more about the discrimination problems facing different workers. Our findings were documented in a report, Women at Work: Looking Behind the Numbers 40 Years After the Civil Rights Act of 1964 (Women at Work Report). It revealed that breaking down charges by race, ethnicity, and gender was crucial to gaining a meaningful understanding of claims being filed with the agency. Numbers on the surface could tell one story, while more a more nuanced and sophisticated breakdown could suggest an entirely different analysis. For example, race discrimination charges consistently were the highest percentage of discrimination charges received by the Commission. The data showed that the vast majority of race discrimination claims were filed by African American women and men, with a modest decrease in charges filed between FY1992 and FY2003. But the data also revealed significant increases in race discrimination charges filed by Hispanic and Asian/Pacific Islander women and men, and smaller increases in race discrimination charges filed by White women and men and American Indian/Alaskan Native women. While much more analysis is needed, the data illustrates the complexity and diversity of race discrimination charges coming before the agency, and why a thorough analysis of such charges is essential to developing effective enforcement strategies.

What Happens to Race Discrimination Charges Filed With the EEOC?

Overall, only a fraction of the discrimination charges received by the EEOC result in litigation, often less than 5%. Although race discrimination charges constitute the highest percentage of charges received by the EEOC, they represent a much smaller percentage of the claims actually litigated by the Commission. In FY2005, for example, race discrimination charges were 35.5% of the charges received by the Commission, but only 21.1% of the cases pursued in by the EEOC in court ⁽⁵⁾. Of these cases, nearly half – 46.9% – alleged racial harassment, and a slightly lower percentage alleged illegal discharge – 41.9%. A far smaller percentage of the cases alleged race discrimination in promotions – 18.5 %, or race discrimination in the terms or conditions of employment – 14.8%. The reasons for this imbalance between race discrimination charges and suits filed are not clear, but they do suggest the need for closer scrutiny to ensure that the Commission maximizes its efforts to tackle race discrimination in the workplace.

B. Obstacles Facing Employment Discrimination Plaintiffs

It is also important to understand that employment discrimination plaintiffs more generally –and people of color and women in particular – face especially high hurdles when trying to vindicate their rights. The National Partnership's Women at Work Report detailed research showing that plaintiffs in employment discrimination cases uniformly face tougher challenges in federal court – in pretrial matters, trials, and when these cases are appealed ⁽⁶⁾. In judge and jury trials, employment discrimination plaintiffs won only 19.29% of judge trials and 37.7% of jury trials from 1970 to 2001. In comparison, other plaintiffs won 45.91% of their judge trials and 44.82% of their jury trials. ⁽⁷⁾. Regarding appeals, plaintiffs appeal cases 17 times more frequently than employers in employment discrimination cases; yet, federal appellate courts reverse plaintiffs' victories far more than they reverse defendants' victories ⁽⁸⁾.

For the most part, the available data does not breakdown these employment discrimination cases by bases, e.g., case alleging race discrimination, sex discrimination, or some other type of discrimination. But some research suggests that race discrimination plaintiffs face even more difficulties than other employment discrimination plaintiffs in pursuing their cases. A study examining California employment discrimination and wrongful discharge jury verdicts, for example, concluded in part that female plaintiffs and plaintiffs of color bringing such cases have low success rates in federal court ⁽⁹⁾. In race discrimination cases brought by non-Whites, plaintiffs only won 36% of the time. In race discrimination cases brought by non-Whites alleging discrimination other than harassment, plaintiffs only won 33% of the time. Of the four race discrimination cases brought by Whites (alleging "reverse discrimination"), plaintiffs won 100% of the time ⁽¹⁰⁾. In cases brought by African American women alleging either sex discrimination and/or race discrimination, plaintiffs won only 17% of the time ⁽¹¹⁾. Women alleging age discrimination lost every case they tried, while men alleging age discrimination won 36% of the time ⁽¹²⁾.

C. Action Steps for the Commission

The Commission's future efforts to tackle race and color discrimination, at a minimum, should include the following action steps:

Internal Assessment. As the Commission considers ways to strengthen its work on race and color discrimination, it is essential that it thoroughly analyzes its charge and litigation data, and evaluate what it is doing well and what it is not doing well. The recent model of the systemic discrimination task force is one that could be duplicated to pull together a diverse group of Commission staff to undertake a comprehensive assessment of the Commission's race and color discrimination work. Such an assessment would include a basic analysis of the numbers – numbers of race discrimination charges received; how these cases were resolved; breakdowns by industry, geographic region, occupation, race, gender, and ethnicity. It would also include an analysis of trends; the identification of unique problems facing specific communities – e.g., Latinas, African American women and men, or others; a detailed discussion of litigation trends and rates broken down by EEOC office; an analysis of the types of race discrimination cases being litigated – e.g., hiring versus promotion cases. Such an assessment should include extensive outreach to stakeholder groups, particularly in different regions of the country so that their experiences in pursuing race discrimination claims can be incorporated into any final conclusions. It also should examine the impact of resource/budgetary limitations on the EEOC's race and color discrimination work, and identify projected costs for stepped up enforcement and litigation efforts. The end result of such an assessment would be a comprehensive report with specific recommendations and plans for conducting the Commission's work on race and color discrimination in the future.

Targeted Litigation Efforts. It is important for the Commission to strengthen its race discrimination litigation efforts by setting concrete goals. Such goals could include a goal to increase the overall number of race or color discrimination cases filed by the Commission, or to pursue more systemic discrimination cases, or to pursue cases in particularly industries or occupations based on a review of available EEOC data. It is essential that the Commission make use of, and encourage others to utilize, the breadth of available litigation and investigative tools – from undertaking systemic or disparate impact cases, to pursuing lawful affirmative action strategies, to evaluating EEOC data to identify trends in particular industries or occupations.

Outreach and Public Education. Outreach and public education are crucial to fostering a greater understanding of the law and the relevant legal protections against race and color discrimination. The Commission can play a central role in educating employers and employees about what the law requires and the rights of employees. Moreover, it is crucial for the Commission to meet 10 Id. at 549. 11 Id. 12 Id. 5 regularly with stakeholder groups in every region of the country to learn more about what is really happening to individuals on the ground.

Improved Data Collection. The EEOC should take steps to improve the quality of their data and generate comprehensive statistics on race discrimination and other discrimination claims. This includes breaking down and publishing their data by multiple factors, such as race, ethnicity, and gender on a regular basis. Such data, reported in more refined categories, would make it easier to identify specific problems affecting different groups of workers. Enforcement and litigation data should be published on a regular basis broken down by bases of claims. Data published on a regular basis allows for more accurate and frequent analysis of what has worked, what has not worked, and what modifications may be needed for more successful and effective enforcement.

Comprehensive, Ongoing Research and Analysis. It is also essential that EEOC consistently research and report on its data, enforcement, and litigation efforts. This includes producing comprehensive reports on specific industries or occupations, or on special topics such as workers facing multiple forms of discrimination, e.g., race and gender discrimination, or race and age discrimination.

All of these together could be used to strengthen the Commission's work on race and color discrimination.

The National Partnership and the Leadership Conference look forward to working with the Commission as it moves forward. Thank you for the opportunity to participate in today's discussion.

Footnotes

⁽¹⁾ Comprehensive historical data on the total number of color discrimination charges was not available.

⁽²⁾ Equal Employment Opportunity Commission, Race-Based Charges FY1992-2019, January 26, 2006 (Available at https://www.eeoc.gov/statistics/race-based-charges-charges-filed-eeoc-fy-1997-fy-2019 )

⁽³⁾ See, e.g., EEOC Press Release, EEOC Obtains $1 Million for Black Man Choked With Hangman's Noose by White Co-Workers, March 21, 2006

⁽⁴⁾ See, e.g., EEOC Press Release, EEOC, Ford, UAW, Class Members Voice Approval of Landmark Race Discrimination Settlement, June 1, 2005.

⁽⁵⁾ See Charge Statistics; Equal Employment Opportunity Commission, FY2005 Annual Report on the Operations and Accomplishments of the Office of the General Counsel, April 13, 2006 (Available at http://www.eeoc.gov/litigation/05annrpt/index.html).

⁽⁶⁾ Kevin M. Clermont and Stewart J. Schwab, How Employment Discrimination Plaintiffs Fare in Federal Court, JOURNAL OF EMPIRICAL LEGAL STUDIES (Vol. 1, Issue 2) (2004). The study analyzed data collected by the Administrative Office of the U.S. courts on federal employment discrimination litigation, and examined the outcome of every civil case concluded in the federal courts from fiscal year 1970 to 2001 (the most recently released data).

⁽⁷⁾ Id.

⁽⁸⁾ Id. Plaintiffs brought 7,667 appeals cases while defendants brought 456 appeals.

⁽⁹⁾ See David Benjamin Oppenheimer, Verdicts Matter: An Empirical Study of California Employment Discrimination and Wrongful Discharge Jury Verdicts Reveals Low Success Rates for Women and Minorities, 37 U.C. DAVIS L. REV. 511 (2003).

⁽¹⁰⁾ Id. at 549.

⁽¹¹⁾ Id.

⁽¹²⁾ Id.

This page was last modified on June 12, 2006.