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Written Testimony of Jocelyn C. Frye Senior Fellow, Center for American Progress

Meeting of July 1, 2015 - EEOC at 50: Progress and Continuing Challenges in Eradicating Employment Discrimination

Good morning and thank you for the invitation to participate in today's meeting to celebrate the 50th anniversary of the important work of the Equal Employment Opportunity Commission (EEOC or Commission). I am Jocelyn Frye, a Senior Fellow at the Center for American Progress where I oversee policy development for our women's initiative. The Center is an independent, nonpartisan policy institute that is dedicated to improving the lives of all Americans, through bold, progressive ideas, as well as strong leadership and concerted action.

The EEOC has played a pivotal, integral role in the progress of women, people of color, people with disabilities, older workers, and many others, standing squarely on the front lines of the battle against discrimination in employment since its inception. The Commission's history is vitally important, not only as a reminder of where we have come from, but also as an inspiration for the work that lies ahead as we continue striving to make our nation's promise of equality a reality for all. I would like to focus my remarks today on the Commission's critical work advancing women's equality and combating sex discrimination in employment.

UNDERSTANDING HISTORY: CONTEXT AND THE MARCH TOWARD PROGRESS

Fifty years ago, the landscape for women's employment was almost unrecognizable by contemporary standards. When Title VII of the landmark Civil Rights Act of 1964 broke new ground by including language prohibiting sex discrimination in employment,1 the provision was considered highly controversial. Some dismissed a prohibition against sex discrimination as without merit; others saw it as a critical step forward to expand job opportunities for women.2 When the EEOC finally opened its doors in 1965, it faced a world where sex discrimination was pervasive and many workplaces still harbored narrow views about what women could and could not do. Indeed, job advertisements separated by race and gender were common, frequently designating certain jobs for white men, white women, black men, black women, or other specific groups of people.3 Even when that formal practice was struck down as illegal,4 the mindset that relegated women to certain types of jobs, typically for lower wages and limited mobility, remained firmly entrenched.

The day-to-day impact of this type of restrictive work environment meant that many women had to overcome stubbornly held attitudes, prejudices, and stereotypes about the types of jobs they could hold, the quality of the work they performed, their skills and abilities, and their overall commitment to hard work. White women and women of color faced similar yet distinct challenges, stemming not only from longstanding attitudes about women, but also from a pernicious legacy of legalized race discrimination that subjected women of color to a double dose of race and gender bias.

With this backdrop, the Commission became instrumental in paving the way for women to gain a toehold in the labor marketplace - work that has continued into the present day. For example:

  • The Commission in its early years helped expand opportunities for women by interpreting Title VII's sex discrimination prohibition to make clear employers could not reserve certain jobs for men and certain jobs for women, refuse to hire married women or women with young children, or exclude women from certain jobs to "protect" them from having to lift heavy objects or work long hours.5
  • In the mid-1970s, the Commission was out front in support of fair treatment for pregnant workers, arguing that treating pregnant women differently than other workers with temporary disabilities constituted illegal sex discrimination.6
  • In the 1980s, the Commission pushed to recognize sexual harassment as a form of illegal sex discrimination.7
  • The Commission issued guidance in 2007 making clear that discrimination based on caregiving responsibilities, if motivated by gender bias, could violate Title VII's prohibitions against sex discrimination.8
  • The Commission has made the rights of LGBT workers a priority, ruling in 2012 that discrimination based on gender identity constitutes illegal sex discrimination and filing cases just last year challenging discrimination targeting transgender workers.9

All these advances have been critical to expanding job opportunities for women and men alike by ensuring that everyone has a fair chance to participate fully in the workplace. The Commission's work has been pivotal to this progress in changing attitudes and challenging discrimination, helping to shape how the protections afforded by Title VII can and should work in practice on the job.

THE CURRENT LANDSCAPE: PRESENT-DAY CHALLENGES AND REALITIES

Despite the very real progress that has been made over the last fifty years, there is still work to do. Women now represent nearly half of the American workforce and, among families with children, two-thirds of mothers are either primary, sole, or co-breadwinners.10 Women are central to the economic security and stability of working families yet they face barriers that often result in lower wages, less flexibility, and fewer advancement opportunities.

  • Women are disproportionately low-wage workers with women of color often earning the lowest wages of all - for example, in 2014, women were two-thirds of minimum wage workers and nearly one-quarter of minimum wage workers were women of color.11
  • Although women have made gains, they still are more likely to work in lower-paying traditionally female jobs, such as service, sales, and administrative jobs, and be underrepresented in higher-paying jobs traditionally held by men like many jobs found in the construction industry.12
  • Although women have moved into professional occupations, they have not been able to move into the highest level jobs in significant numbers. More than 50% of all professional-level jobs are held by women but they are less than 5% of Fortune 500 CEOs, less than 15% of executive officers, and only 12% of corporate board directors.13

Moreover, a brief sampling of the Commission's own charge data makes clear that women continue to raise concerns about discriminatory barriers impeding their ability to find a job, keep a job, and advance up the career ladder:

  • Charges alleging sex discrimination remain one of the largest categories of charges received by the EEOC on an annual basis. In 2014, the Commission received over 26,000 charges alleging sex discrimination, nearly one-third of all charges filed.14
  • Pregnancy discrimination charges have risen sharply over the decades - from FY 1992 to FY 2011, charge filings increased by more than 70%.15
  • Retaliation charges under Title VII, which past research suggests are disproportionately filed by women, have been on the rise for decades, and now are surpassed only by race discrimination charges. In 2014, more than 30,000 retaliation charges were filed under Title VII.16

In response, the Commission has taken important steps forward, including an emphasis on pursuing systemic discrimination cases and issuing a Strategic Enforcement Plan that lays out action steps to combat discriminatory practices and prioritize its work in the coming years.

THE NEXT FIFTY: LOOKING AHEAD TO ENSURE WOMEN'S PROGRESS

As the Commission looks ahead to the next fifty years, it is essential to have a forward-looking agenda deeply rooted in our American values of equality, fairness, and opportunity that can respond to the current challenges impacting women's progress and new issues on the horizon. The Commission is well-positioned to lead decisively by continuing to pursue its ongoing work to ensure vigorous enforcement of the law and by identifying bold new strategies to root out discriminatory practices, make workplaces stronger, and expand women's opportunities. Three priorities are particularly critical and uniquely suited to the Commission's mission: tackling the rising tide of inequality to remove economic, employment, and societal barriers undermining workers' stability and success; creating workplaces that are fair, open, and free of discrimination; and fostering an economy that makes full use of all of our nation's talent.

There are several strategies the Commission can pursue to advance these priorities:

1) Continued action to ensure equal pay and close the wage gap. For many women, economic inequality and insecurity are most tangibly reflected in the persistent wage gap that disproportionately relegates women and people of color to the lower rungs of the income ladder. While there are multiple factors that contribute to the wage gap and require a range of different solutions, there are actions the EEOC can take to close the gap:

  • Increase the number of cases filed by the EEOC challenging pay discrimination with a particular focus on systemic practices. Pay discrimination cases constitute a small percentage of the EEOC's litigation docket. Increasing the number of cases filed can signal to employers a stepped-up focus by the Commission and incentivize employers to scrutinize their practices more closely on a more regular basis.
  • Release more detailed data about different types of pay discrimination charges and their scope to encourage better practices and raise awareness. The EEOC's own charge data reveal that only a portion of pay discrimination charges are actually filed under the Equal Pay Act. The majority of pay discrimination claims are filed under Title VII of the Civil Rights Act, and claims are also filed under other laws enforced by the EEOC such as the Americans with Disabilities Act.17 Further, pay discrimination charges are not solely brought by women. Indeed, approximately one-third of the charges filed under Title VII in FY2013 were brought by men.18 Educating employers, supervisors, managers, and employees about the diverse ways that pay discrimination may arise could help promote a more sophisticated understanding and awareness of discriminatory attitudes and practices, as well as potential pathways toward resolving conflicts as quickly as possible.
  • Target specific industries and communities with the widest pay disparities. The EEOC should analyze its own data to identify industries and occupations with the largest pay disparities. Armed with that information, the Commission could focus on identifying industry-specific best practices, or pursue collaborative enforcement efforts with other agencies as part of the work of the Administration's interagency equal pay task force. The Commission could use a similar approach to focus special efforts on communities that experience the largest pay disparities, such African American women and Latinas. This work could include targeting enforcement efforts on occupations that employ more women of color and have large pay gaps, educating employers about the combined effects of race and gender bias and how it can affect job selection and promotion decisions, and providing women of color with better tools to make more informed pay decisions. Additionally, the Commission should continue to monitor new data on emerging wage gaps, such as those facing women in the LGBT community, to identify specific interventions that could help to close such gaps in a timely fashion.19

2) Tackling workplace barriers facing pregnant women, mothers, and women with caregiving responsibilities. Research suggests that mothers often experience the sharpest pay gaps, in part because they tend to spend more time out of the workforce to provide care to their families.20 Indeed, women often are expected to take on caregiving responsibilities for their families and, as a result, may face stereotypes or be denied job opportunities.

  • Continued focus on pregnancy discrimination. The Commission has identified pregnancy discrimination as an important strategic priority and it should continue to pursue aggressive action to combat discriminatory practices. That work should include a comprehensive review of the latest data to document trends and recent developments. While charges have risen significantly over the past few decades, there also is promising recent data showing a decline in charges filed with the EEOC (excluding the state fair employment practices agencies) since FY 2010 - an important development.21 It would be useful to understand the reasons for this decline and whether this change suggests new strategies that could be deployed more broadly to strengthen current enforcement efforts. The Commission should also explore whether a similar decline has occurred with charges filed with state fair employment practices agencies or whether their data reveal a different trend.

3) Renewed attention to the glass ceiling and sticky floor phenomena to ensure women have meaningful advancement opportunities and greater economic mobility. Too many women are stuck either in jobs that pay low wages and offer little upward mobility, or mid-level jobs that never seem to lead to the top jobs. The Commission should explore ways to focus new attention on expanding available career ladders for women. This could include convening experts and employers to identify best practices, working with other agencies to share information about different trends and other investigatory efforts, and examining employer recruitment practices to assess differences in how positions are filled or whether certain candidates are steered into certain types of jobs. In particular, the Commission could partner with the Department of Labor to evaluate the results of corporate management reviews (often referred to as glass ceiling reviews) conducted by DOL over the past two decades to identify lessons learned, best practices, and potential new enforcement strategies that could be used to improve advancement opportunities for women.

4) Exploring unique challenges facing women of color and finding ways to expand their job opportunities. With the growing diversity of the workforce, it is essential to ensure that all workers have their best chance to succeed. EEOC data have shown higher rates of discrimination charges filed by women of color in different categories of cases (such as pregnancy discrimination, for example22) yet that data is often not analyzed for such disparities on a regular basis. The Commission could make an important contribution by undertaking a comprehensive review of its data to determine the different types of discrimination charges disproportionately filed by women of color, by industry and occupation where relevant, to gain a better understanding of the work experiences of women of color. Such information could be critical to help target enforcement or education efforts where they are needed the most. It also could provide insight into how best to engage women of color, particularly those from immigrant communities, to ensure they are aware of their rights and know how the law is supposed to work.

5) Strengthening enforcement and investigatory tools to uncover and combat discriminatory practices. It is essential that the Commission continue to play a leadership role in ensuring vigorous enforcement of the law. This work should include:

  • More resources for increased litigation and continued filing of amicus curiae briefs in key cases.
  • Continued focus on combating systemic discriminatory practices to maximize the impact of the Commission's enforcement efforts.
  • Use of Strategic Enforcement Teams, as described in the Commission's FY 2013 - FY 2016 Strategic Enforcement Plan, to marshal resources from different parts of the agency to be deployed strategically to tackle specific issues.
  • Increased use of Commissioners' charges to widen the Commission's impact and reach.

Further, the Commission could bolster its enforcement efforts through increased collaboration with other agencies. For example:

  • The Commission could explore with other agencies the potential benefits of creating an interagency Strategic Enforcement Team that might have greater ability to combine enforcement resources, be more nimble during investigations, and address multiple enforcement concerns at the same time.
  • The Commission could engage with the Department of Justice to examine how best to increase the number of EEOC referrals pursued by the DOJ.

6) Exploring ways to support workers with non-traditional work arrangements or work settings. The workforce is changing rapidly. Many workers no longer expect to work in one job for 20-30 years; rather they may have multiple jobs, work from home or on a contract basis, or take on work more sporadically. In such an environment, traditional workplace legal protections may not extend to these types of workers. The Commission could play an important role in helping to educate workers about what protections they should expect, what questions to ask before accepting any new job opportunity, and what recourse if any would be available should problems arise.

7) Collaborating with business on voluntary efforts. Creating stronger workplaces is not simply a responsibility for government; the business community also has an important role to play in making our workplaces better for employees and employers alike. The Commission could work with key business groups to conduct trainings for managers on best practices and celebrate business leaders with a demonstrated commitment to adopting strong workplace policies that provide equal opportunities for all workers. The Commission also could bring together business leaders involved with different voluntary initiatives at the state and local level to learn about what is and is not working and discuss strategies for incentivizing more participation. The Commission also could collaborate with business on case studies to learn more about how specific policies work in practice, such as the impact of pay disclosure policies on the workplace.

8) Ongoing research and analysis to identify emerging trends and impacts. The Commission collects an enormous amount of data that can provide insights into the challenges confronting workers. It is essential for the Commission to scrutinize its data regularly to determine whether there are particular trends that call for quick action or require a targeted response.

CONCLUSION

Since its earliest days, the EEOC has been on the front lines of the fight for workplace equality. When employees have faced sex discrimination on the job, the Commission has been the destination for help in challenging discriminatory practices and vindicating workers' rights. This agency has been entrusted with an enormous responsibility - to uphold the principles of equality and fairness enshrined in the Civil Rights Act and ensure that the law's promise is made real in concrete practices on the ground. This mission remains as vital today as it was in 1965 and is central to continuing our nation's progress over the next fifty years and beyond. Thank you for the opportunity to join in today's discussion. I look forward to the next chapter of the conversation.

ENDNOTES

1 Title VII of the Civil Rights Act of 1964, 42 USC §2000e, et. seq. (Title VII).

2 U.S. Equal Employment Opportunity Commission, EEOC History: 35th Anniversary 1965-2000, "Shaping Employment Discrimination Law," available at http://www.eeoc.gov/eeoc/history/35th/1965-71/shaping.html (last accessed June 2015); Robert C. Bird, "More Than a Congressional Joke: A Fresh Look at the Legislative History of Sex Discrimination of the 1964 Civil Rights Act," Wm. & Mary J. Women & L. (3) (1997): 137-161.

3 "Want Ads," The State, June 1, 1958 at 8D (Columbia: University of South Carolina, Newspapers on Microfilm).

4 Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 US 376 (1973).

5 U.S. Equal Employment Opportunity Commission, "Shaping Employment Discrimination Law."

6 General Electric v. Gilbert, 429 US 125 (1976) where the Supreme Court disagrees with the EEOC's position and Pregnancy Discrimination Act of 1978, 42 USC §2000e, et. seq. overturning Gilbert and reinstating the EEOC's interpretation.

7 Meritor Savings Bank v. Vinson, 477 US 57 (1986).

8 U.S. Equal Employment Opportunity Commission, Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, (U.S. Equal Employment Opportunity Commission, 2007), available at http://www.eeoc.gov/policy/docs/caregiving.html.

9 Macy v. Holder, EEOC DOC 0120120821, EEOC (April 20, 2012) and EEOC v. RG & GR Harris Funeral Homes Inc., E.D. Mich. Civ. No. 2:14-cv-13710-SFC-DRG filed Sept. 25, 2014, available at http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt.

10 Sarah Jane Glynn, "Breadwinning Mothers, Then and Now," (Washington: Center for American Progress, 2014), available at https://www.americanprogress.org/article/breadwinning-mothers-then-and-now/.

11 National Women's Law Center, "Fair Pay for Women Requires a Fair Minimum Wage," (Washington: National Women's Law Center, 2015), available at http://www.nwlc.org/resource/fair-pay-women-requires-fair-minimum-wage.

12 National Equal Pay Task Force, "Fifty Years After the Equal Pay Act, Assessing the Past, Taking Stock of the Future," (The White House, 2013), available at https://obamawhitehouse.archives.gov/sites/default/files/equalpay/equal_pay_task_force_progress_report_june_2013_new.pdf

13 Judith Warner, "Fact Sheet: The Women's Leadership Gap," (Washington: Center for American Progress, 2014), available at https://www.americanprogress.org/issues/women/report/2014/03/07/85457/fact-sheet-the-womens-leadership-gap/.

14 U.S. Equal Employment Opportunity Commission, Charge Statistics FY 1997 through FY 2014, http://www1.eeoc.gov//eeoc/statistics/enforcement/charges.cfm?renderforprint=1.

15 National Partnership for Women and Families, "The Pregnancy Discrimination Act Where We Stand 30 Years Later," (2008), available at http://go.nationalpartnership.org/site/DocServer/Pregnancy_Discrimination_Act_-_Where_We_Stand_30_Years_L.pdf. In FY 2012, the EEOC changed how pregnancy discrimination charges were reported so it is difficult to compare the more recent FY 2012-2014 data with data generated for prior years.

16 U.S. Equal Employment Opportunity Commission, Charge Statistics FY 1997 through FY 2014; National Partnership for Women and Families, "Women at Work: Looking Behind the Numbers 40 Years After the Civil Rights Act of 1964," (2004), available at http://www.nationalpartnership.org/research-library/workplace-fairness/women-at-work.pdf.

17 U.S. Equal Employment Opportunity Commission, Statutes by Issue FY 2010 - FY 2014, available at http://www.eeoc.gov/eeoc/statistics/enforcement/statutes_by_issue.cfm.

18 U.S. Equal Employment Opportunity Commission, EEOC Title VII Wage Charges FY 2009 through FY 2013, unpublished tables provided by EEOC in April 2014 on file with author.

19 Center for American Progress and Movement Advancement Project, "Paying an Unfair Price The Financial Penalty for LGBT Women in America," (Washington: Center for American Progress, 2015), available at http://www.lgbtmap.org/file/paying-an-unfair-price-lgbt-women.pdf.

20 Sarah Jane Glynn, "Explaining the Gender Wage Gap," (Washington: Center for American Progress, 2014) available at https://www.americanprogress.org/issues/economy/report/2014/05/19/90039/explaining-the-gender-wage-gap/.

21 U.S. Equal Employment Opportunity Commission, Pregnancy Discrimination Charges FY 2010 - FY 2014, available at http://www.eeoc.gov/eeoc/statistics/enforcement/pregnancy_new.cfm.

22 National Partnership for Women and Families, "The Pregnancy Discrimination Act Where We Stand 30 Years Later."