Written Testimony of Darrell S. Gay Partner, Arent Fox LLP

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

Madam Chair, distinguished Commissioners, ladies and gentlemen of the audience, good morning. It is an honor to have this opportunity to meet and address each of you this morning and I hope you will accept my thanks for inviting me to join you during this commemoration of the fifty years of the EEOC.

A lot has changed over the last fifty years. However, as is so evident by all the news we have had the misfortune to all observe, as a country we still have a way to go before we realize the dream of an America without discrimination.

Having said that my purpose today is to discuss my perceptions as to what Employers are doing to foster work environments free of discrimination, what they might do a little better, and also to discuss my perspective on the EEOC, its activities, and hopefully make a few suggestions that you might find worthy of adopting.

For the purpose of efficiency of time, my presentation will combine my reflections on what is being done with my recommendations on what could be done better.

What Employers are Doing

First, let's discuss what employers are doing to foster and stimulate working environments free of discrimination.

Policies and Code of Conduct

Employers are developing and implementing policies that prohibit discrimination and encourage environments of respect. These include personnel policies and the use of a Code of Conduct. These policies clearly define what is permissible, what is not, what is expected by management and employees, and how concerns of employees should be handled.

When discussing the use of such policies, I must note that it is not sufficient to have personnel policies and/or a code of conduct created, if the Employer does not mandate that it be provided to all employees and taken seriously. We recommend that employers require all employees sign an acknowledgment that they have received such instruments, understand them and accept their duty to comply.

Training

Having these policies is of little value if they are not understood or if there is a lack of understanding of what should be done when pertinent issues develop. This requires the use of training programs that address same.

There are different types of training.

We recommend that all employees be provided sensitivity training, which facilitates an understanding of the differences between individuals, many times related to their specific suspect classification, but most importantly clarifies that individuals should not be viewed or treated differently just because they are of a different suspect classification.

Managers and supervisors should all receive management training. This training should obviously address an understanding of EEO laws and the process for handling any concern raised by an employee. However, it is my opinion that many employers get in trouble, not because of what they do, but usually because of "how" they did it. This is because many supervisors/managers are given their positions based on their technical knowledge, but never taught what it means to be a supervisor/manager, how to manage, and how to handle issues that develop in their work environment.

Each work environment is different, and it is important that, whether you are providing policies and/or training that it be tailored to address the uniqueness of that particular work environment and the issues that the particular work environment has/is exposed to both historically and currently. Avoiding a canned presentation is definitely something that should be considered.

Ensure those being trained are focused on training, and not trying to fulfill their day job responsibilities.

Many employers demonstrate their commitment to these policies and training, and the seriousness of same, by the attendance of senior management, including members of the "C Suite" including the CEO as attendees at these sessions.

Early Intervention and Resolution

Employers are more effectively using internal grievance processes to fully investigate employee concerns and provide these employees with prompt responses to the issues raised by the employees. This goes to the old rule that employees file claims against Employers more because of how they did something versus what they did. Many cases are easily resolved when the employee is given an opportunity to be heard and the company responds.

Offices of Diversity

Employers recognizing that they need direction and control over their efforts to ensure a diverse environment free of hostility, have put in place aggressive diversity programs. Many employers have appointed an individual to work in the capacity as Chief Diversity Officer of the company. This person usually is placed in the organization chart of the company as part of the "C Suite". It is my opinion that as a best practice, the CDO should report to the Board of Directors of the Company, or at minimum, the CEO of the company, to ensure unfettered authority to implement and effectuate the company's objectives and goals. It is also my opinion that the CDO should be someone with legal and HR training.

A company has to be careful that it is not perceived that they have chosen someone more because of his/her ability to be a spokesperson rather than a leader.

Use of Select Third Party Organizations

Many employers have recognized that in addition to assisting those who are currently employed by a particular employer, they also need to access a pipeline for future diverse candidates. An effective methodology being used by many companies is through a partnership with one or more organizations that work with candidates who are members of a suspect classification that is poorly represented in the employer's work environment. While an employer has to be careful it has taken the necessary legal steps to ensure that it is not unnecessarily transgressing on the rights of other individuals, these organizations are an excellent source for individuals from segments of our community who have suffered a disparate impact in being hired/promoted by the employer.

Some employers further recognize that our current public school systems are failing to develop potential diverse employees, and to supplement or circumvent the system, they are providing sponsorship and support for organizations that help individuals who would normally be denied the best options for education.

Many individuals are still the first in their family to attend graduate school or even college. Education has long been the road to success, which is why Brown v. Board was such an important decision. Today individuals who are not fortunate to have parents who are wealthy or able to afford the cost of private school are fortunate if their child is chosen to participate in programs such as:

1. Sponsors for Educational Opportunity (SEO)
2. Prep for Prep
3. A Better Chance

Relationship of EEOC and Employers

With respect to the EEOC and its relationship with employers, it is important to keep in mind that, given the EEOC's very important role in enforcing Title VII and other significant laws, that it must maintain a level of credibility with both those who advocate for employees and those who advocate on behalf of employers. As a governmental body charged with law enforcement it is my perspective that effectively the EEOC has to be viewed as neutral as it applies to employees and employers, while making it clear that it takes the job of enforcing our employment laws extremely seriously.

That takes us to the question as to how we can achieve this goal.

First, I and several of my colleagues from the management bar have felt that we are viewed as the enemy versus a team player. Note that employers gain no benefit from violating any law, and usually it comes from poor judgment of a member of management, or many times it is the product of a failure of proper communication between management and the employee(s) raising their concerns.

Necessity of Neutrality

As an advocate for an employer I have seen that if the employer feels that the agency is biased not based on the facts of the case, but just on the fact that one party is the employer and the other is the employee, then it fosters in employers a belief that the EEOC is biased and not being evenhanded. When that occurs it affects how employers react to attempts to conciliate a case and also fosters unnecessary hostility between the parties in a case.

Understanding the Uniqueness of the Case and the Employer

What makes the practice of labor and employment law so fascinating and maintains my interest is that each case is different and has a life of its own. While I appreciate the need for time targets for completion of investigations, it is also necessary for the EEOC to keep in mind that those time targets and investigation requirements should be flexible to accommodate the realities of the particular case, the uniqueness of the parties involved and the counsel who is representing those parties.

Cooperative Approach

It has been my experience that when an investigator works with me, allowing me the necessary time to fully investigate my case and put together my position statement, I am inspired to provide the quality and quantitative statement that helps that investigator do his/her job.

There are some who feel that this level of cooperative experience is not sufficiently uniform throughout the EEOC, and that in fact, certain offices are considered more likely to be hardnosed and uncooperative than others. Consider the advantages of a cooperative team effort when a charge is filed, with the EEOC verifying whether an individual's rights were infringed, and the employer determining whether it has issues with its employee relations, policies and/or management team. The collective approach is much more likely to net a positive result for the long term, not only for that employee but for all of that employee's present and future coworkers. I would suggest that an adversarial approach will not have the same positive results.

Having said this reminds me of two stories.

First, a few years ago, Spencer Lewis, who at that time was the head of the New York Office of the EEOC invited myself and Betsy Plevan from Proskauer to meet with the New York staff and discuss the working relationship between counsel for employers and the EEOC. During that meeting we discussed how we, counsel for employers, felt about how the EEOC reacted to us during investigations and how that affected our cooperation with the EEOC. During that meeting we also had an opportunity to hear from the members of the New York staff about how they perceived our requests for time or information about a case. The discussion provided an opportunity for Betsy and I to better understand why we occasionally confronted suspicion and negative reaction to our requests from the EEOC, and provided the staff of the EEOC an opportunity to understand the logic of why we made some of our requests and/or took positions they saw as attempts to stall a case or negatively affect their attempt to investigate. It was a positive meeting that advanced the working relationship of the EEOC and members of the management bar.

I would encourage the EEOC to consider similar meetings in each of their offices to help break down barriers and develop better communication between the parties. Such a meeting does not have to be limited to just the EEOC and representation from the management bar. I would encourage that meetings of this type also include representation from those who advocate on behalf of employees.

I would also encourage the EEOC to consider the creation of task forces to review and consider issues that merit guidance from the EEOC. While members of the management bar will not always agree with the wisdom of the EEOC, I believe that all parties will gain if guidance is issued after being fully vetted by all interested parties. I would also encourage similar type meetings involving the EEOC, the plaintiff's bar and management bar, to consider issues that require production of guidance. Such issues include social media, convictions and testing.

I would also encourage the EEOC to temper what is perceived as an effort to act beyond their charge. While there are a host of issues that are perceived by members of the management bar as being outside the EEOC mission - one such issue involves the EEOC's mandates concerning settlement agreements between parties. These issues lead to a belief that the EEOC is not neutral, which as mentioned earlier compromises the ability of employer representatives to convince their clients that the EEOC's positions are fair and based on law versus idealism.

Implicit Bias

The second story I would like to share involves a well respect labor employment attorney, who once told me that as a standard part of his practice, he would always attempt to develop a positive working relationship with his opposing counsel. He told me that there was one particular opposing counsel who always would be hostile to him, no matter the case, or what he said or did. Finally, one day she admitted to him that she was offended that he as an African American male could defend companies accused of discrimination. Obviously, this very pious and idealistic attorney who had a great desire to fight for the civil rights of her clients, failed to understand that she was effectively engaging in discrimination against this African American male attorney when she was concluding that he should not be able to be a defense attorney. We have to work together, and true progress with respect to eliminating issues in the workplace will not be achieved unless it is the byproduct of a collaborative effort of those who represent employees, those who represent management, and those in the government charged with enforcing the employment laws of this country.

This story also brings us to the final issue I wish to address today. Namely: implicit bias.

We are all guilty one way or the other of having biases. Unfortunately, we are all not willing to admit to holding such biases.

Implicit bias is the current eight hundred pound gorilla that needs to be addressed in today's work environment. Since I was a child the world has grown from the days when men wore white hoods and sheets, and adamantly stated their refusal to hire blacks, women or members of certain religious bodies etc. However, today even some of those who would voice their commitment against all kinds of discrimination still fail to recognize their latent biases when choosing who they hire or retain for services. We do not have the time today to fully explore and conclude how to address implicit bias. It is, however, an issue in the work environment that requires attention. I would recommend this being an issue that merits the kind of joint efforts of the representatives of employees, employers and the EEOC that I previously referred. Our work environments are affected by what we are taught growing up at home and in school, what we observe via any number of vehicles of media transmission and in this age of a global world, what we observe on the international stage. Implicit bias is not a simple issue to be tackled, but if we truly want to achieve work environments free of discrimination, it is an issue that we must fully explore and discuss. The use of effective policies, training, early intervention and the use of Diversity Offices are all steps in the right direction to eradicate implicit bias, but I am not convinced they are enough. To address implicit bias we need to also address the biases that result from poverty, concerns of economic unbalance, failing educational systems and the continuing need for decent housing for all.

I will close with one final story. One of New York's finest private schools recently was the subject of discussion because of one of its outreach programs. This program involved communication between students at its school and students of the same level at one of the schools from one of the poorer neighborhoods in the city. As part of this outreach, it had the students from that school visit its campus. The visiting students were disturbed and distressed when they arrived at the campus and recognized the stark difference from their school environment. The students from the private school were also affected by the feelings of the visiting students. From this experience these children will grow into adults whose perceptions of the world, their fellow citizens and their fellow workers/employers/employees will be shaped by experiences such as this school visit. We must remember that as individuals we are shaped by every event in our life and by those who we share life with, including our teachers, friends, parents, siblings, coworkers etc. As we look to address implicit bias we must keep in mind it is not just an issue in the workplace, but a societal problem, that requires a global approach.

Closing

Ladies and Gentlemen, it has been an honor to participate in this most important meeting. I thank each of the Commissioners, the staff of the EEOC, my fellow speakers and members of the audience for this opportunity to share my thoughts. I hope my comments have been of some value.