The U.S. Equal Employment Opportunity Commission

Commission Meeting of March 17, 2008 on Renewal of UGESP Authorization under the Paperwork Reduction Act

PRESENT:

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

ALSO PRESENT:

RONALD COOPER General Counsel
REED RUSSELL Legal Counsel
BERNADETTE B. WILSON Program Analyst

This transcript was produced from a video tape provided by the Equal Employment Opportunity Commission.

TABLE OF CONTENTS

1. Announcement of Notation Votes
2. Motion to Close a Portion of the Next Commission Meeting
3. Proposed Renewal of UGESP Authority under the Paperwork Reduction Act
4. Motion to Approve the Proposed Renewal of the Uniform Guidelines on Employee Selection Procedures under the Paperwork Reduction Act
5. Motion to Adjourn

P R O C E E D I N G S

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

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

But before asking Bernadette Wilson to announce notation votes, I'd like to acknowledge that today, March 17th, is St. Patrick's Day. St. Patrick is the patron Saint of Ireland. St. Patrick's Day is celebrated worldwide by people of Irish descent and increasingly by many non-Irish.

COMMISSIONER ISHIMARU: People of honorary Irish descent.

CHAIR EARP: … Honorary Irish descent.

In America, it seems everyone is Irish on this day. Many of us celebrate by wearing green, eating Irish food, and enjoying Irish drink. Whatever your tradition, on behalf of the Equal Employment Opportunity Commission, I wish you a joyous celebration of diversity and a very happy St. Patty's Day.

At this time I'm going to ask Ms. 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 February 19th, 2008, through March 14th, 2008, the Commission acted on two items by notation vote:

Approved a resolution honoring Jeanette Leino; and,

Approved an NPRM on disparate impact under the ADEA.

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?

COMMISSIONER GRIFFIN: Second.

CHAIR EARP: Any discussion?

(No response.)

CHAIR EARP: Hearing none, all those in favor, say aye.

(Chorus of ayes.)

CHAIR EARP: Opposed?

(No response.)

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

Thank you, Ms. Wilson.

We have before us today a Paperwork Reduction Act Notice announcing that EEOC will apply to the Office of Management and Budget to extend the record keeping provisions of the Uniform Guidelines for Employment Selection Procedures, commonly referred to as "UGESP" or "Uniform Guidelines." We will be applying without change of any kind for three years, until 2011. Public comments will be accepted for 60 days after publication, and the EEOC will formally submit the PRA package to OMB after that.

The Commissioners received this document for review January 31st, 2008, and received subsequent revisions. In addition, the Commissioners have received briefings as requested.

As my fellow Commissioners know, the Uniform Guidelines explain how employers and other entities covered by Title VII of the Civil Rights Act of 1964, like unions and employment agencies, should determine whether their employment selection procedures have a disparate impact and, if so, whether they are valid under UGESP, in other words, if they are job related and consistent with business necessity.

Specifically under UGESP, an employer must keep applicant or employee data to determine whether a selection procedure disproportionately excludes individuals on the basis of race, sex, or national origin, and, if a disparate impact exists, an employer must show that the selection procedure is valid under UGESP technical standards for validity studies.

UGESP is a joint rule: EEOC, Department of Labor, Office of Federal Contract Compliance Programs, Department of Justice and the Office of Personnel Management, but only EEOC is responsible for the rule's PRA authorization.

This proposed PRA notice concerns only the UGESP record keeping provisions. It does not affect technical standards for validating tests and formal selection procedures.

Renewals under the PRA focus on record keeping effectiveness and burden, not on the substance of the rule itself.

Today's meeting is the culmination of a process begun in 1999, when the EEOC filed a routine, three-year PRA renewal for UGESP. OMB granted a partial extension to December 31st, 2001 so that EEOC, DOL, DOJ and OPM could determine whether record keeping guidance was needed in light of "the growth of the Internet as a job search mechanism," language from OMB.

The UGESP agencies published a joint proposal in the Federal Register consisting of five draft Q&As defining electronic or Internet applicant on March 4, 2004. These proposed Q&As were never finalized because the agencies did not reach consensus in light of their differing enforcement responsibilities, and this lack of consensus is despite much time and substantial effort being devoted.

Throughout this process, EEOC continued to obtain three-month PRA emergency extensions to support the joint effort.

In December 2007, the Commission determined that it would no longer be able to obtain three-month emergency extensions for UGESP, and that it was necessary to apply for a new, full-term PRA authorization. If EEOC does not apply for this authorization by March 31st, the data collection requirements of UGESP will lapse.

Restoration following such a lapse would be more than a matter of simply renewing the data collection requirements. Rather, we would have to publish a notice soliciting comments on the utility and burden of all, all of UGESP record keeping requirements, a process that would create a gap in the record keeping enforcement provisions and leave stakeholders uncertain about how to conduct their record keeping practices unless or until a replacement for UGESP is promulgated.

Seeking to renew the UGESP PRA authorization in no way prevents the Commission from issuing guidance using traditional policy tools or otherwise looking at Internet related topics.

The notice before us today simply insures that UGESP will remain intact and effective as a record keeping rule until 2011. It is imperative that the guidelines not be allowed to lapse, and I urge my fellow Commissioners to vote in favor of the renewal.

Assistant Legal Counsel Carol Miaskoff is available to answer any questions that the Commissioners might have.

In usual fashion and by seniority, Commissioners will have five-minute rounds for statements, comments or questions, and there will be succeeding rounds as needed.

Ms. Miaskoff, I want to thank you for all the work that you've put in getting us to this point.

MS. MIASKOFF: You're welcome.

CHAIR EARP: Vice Chair, why don't we start with you?

VICE CHAIR SILVERMAN: I am sorry. I forgot my green this morning. I apologize.

COMMISSIONER GRIFFIN: And she's from the Boston area.

(Laughter.)

VICE CHAIR SILVERMAN: I did remember to put it into the meringue cookies that I sent to the St. Patrick's Day party on Friday for my daughter. Well, there was no school today.

The federal government adopted the Uniform Guidelines 30 years ago based on its recognition that one set of principles should govern the use of tests and other selection procedures. It did so so that employers, labor organizations, employment agencies and licensing and certification boards would have one set of standards to assess whether their selection procedures comply with federal equal employment opportunity laws, and so that all those government agencies could look at those in the same way.

UGESP's record keeping requirements require employers to retain applicant flow data and validation studies. This is essential because it insures the preservation of these important records, which in turn enables this agency and our sister agencies to have the information that we need to determine whether discrimination has played a role in hiring and promotion decisions.

The issue before us today involves renewing these record keeping requirements, and I'm sure that all the Commission recognizes that it is imperative that we act today so that this important part of UGESP does not lapse.

Ms. Miaskoff, having led the Commission's initiative to revitalize our systemic and enforcement and litigation program, I'm particularly concerned what would happen if the Commission didn't act today to renew this important part of UGESP. How would such inaction affect our systemic program?

MS. MIASKOFF: Right, well, the UGESP record keeping requirements, the core of it is a section that calls for covered entities to retain applicant flow data, and also to retain validity studies that are done on employment selection procedures like tests and formal interviews. If this provision were to lapse, there would be no guarantee, clearly, that employers would keep this. From the employer side, they wouldn't know what necessarily to keep, and I think most importantly from our systemic enforcement perspective, this is information that is critical. We always ask for validity studies, for example, and obviously applicant flow is also critical.

VICE CHAIR SILVERMAN: Thank you.

MS. MIASKOFF: You're welcome.

VICE CHAIR SILVERMAN: I'm done.

CHAIR EARP: That's it? Okay.

Commissioner.

COMMISSIONER ISHIMARU: Thank you, Madam Chair.

You know, UGESP is one of those great Washington acronyms, and when I talk about UGESP with non-experts in the field, people give me a quizzical look when you tell them that it's an acronym that means the Uniform Guidelines on Employee Selection Procedures. Quite often people's eyes glaze over, but I've come to learn, come to understand that this is an important piece of the EEOC's and other government agencies' arsenal and as a tool to fight discrimination and to challenging disparate impact cases regarding employment tests and other selection criteria.

As we learned at our hearing last year when we started to look at employee tests, employers often use tests and other selection procedures to screen applicants for hire and employment and employees for promotion. There are many different types of tests and selection procedures, including cognitive tests, personality tests, English proficiency tests, medical examinations, credit checks, criminal background checks. The record keeping requirements of UGESP allow us to see whether employers are disproportionately excluding people based on protected characteristics.

They also help us to determine whether the selection procedures are job related and consistent with business necessity and whether a less discriminatory selection procedure may exist.

In some cases that the EEOC has brought in recent years alleging disparate impact based on employment tests include our case against Ford Motor Company that we settled, I think last year…?

CHAIR EARP: Yes.

COMMISSIONER ISHIMARU:…where we alleged that African Americans were excluded from an apprenticeship program after taking a cognitive test that had a statistically disparate impact.

We also alleged that less discriminatory selection procedures were subsequently developed, but Ford did not modify its procedures.

And in the Dial case of a couple of years ago, we established in court that the test had a significant adverse impact on women, and the jury found continued use of the test amounted to intentional discrimination.

Clearly, UGESP is important, and a failure to renew the record keeping provisions of UGESP under the Paperwork Reduction Act would show a definite lack of commitment to civil rights enforcement. The lapse in the Paperwork Reduction Act authorization for UGESP would deal a colossal blow to disparate impact litigation.

So it's good that we're coming to some closure on the issue of the Q&As issued back in 2004, which proposed to clarify how UGESP applies in the context of the Internet and related technologies, including clarifying the term "applicant."

But, frankly, the closure we're coming to today is far from ideal. It's been four years since these Q&As were published. The whole question of Internet applicant is a huge question, a very difficult question. It's evolved, and I know as all of us become more familiar with the impact on the Internet on employment, these are questions that I think need to be answered.

And I guess this was one of the issues when I first came to the Commission was one of the hot issues of the time, and people said, "When are you going to deal with the Internet applicant issue?" And I know we've all been asked this question. One thing that I learned from our friends in the business community, they wanted to know when will the government come up with one standard so that businesses know what they have to do? And I think by not coming to closure on this for UGESP, we've failed, and I think that's a disappointment and I think it's a disappointment that we have to start over.

But it certainly is not just the blame of this agency and the hard work that's gone into it, and I know many long hours have been put into it by many people working on this. And I know that Carol's taken the lead on that, and this is not to be disparaging on you because it was a tremendous amount of work and effort that went into this. I understand that.

But our friends at the Department of Labor, at the Department of Justice, at the Office of Management and Budget and, I guess, the Office of Personnel Management as well, all had some role in this, and to not be able to come to closure on this is very troubling.

It's also troubling, I think, that the Department of Labor came up with their own definition, which suits their purposes, and I appreciate that as well, but I believe having a Department of Labor proposal on its own yields some confusion because people want to comply and need to comply if they're federal contractors with the Department of Labor standard. Yet that standard may or may not meet the standards under UGESP for everyone else. And I think by not coming out with guidance, people are in a difficult situation and will continue to be in a difficult situation. So I hope that we're able to as time goes forward and as you said in your opening statement, Madam Chair, that we are not precluded from acting in our own manner both on the UGESP Q&A and on an EEOC Q&A, if it was narrowly tailored to the agency's interest, and I hope that we will continue to try to deal with this question of Internet applicant because, as we've seen from some of our past meetings, the difficulties that have arisen from the new technologies that have developed over the last ten years and the potential for possible problems that may arise as people apply for jobs on the Internet through ways when you and I started working were not even thinkable, that we need to make sure that these new technologies which yield tremendous benefits are not used as possible sources of abuse.

And I would hope that by coming to closure today this will not end the story on this, but I hope that we can come up with guidance that will be useful for everyone on how to deal with this in the future.

So, I have questions, but I'll wait until the next round. I have a few, but I'll wait until Commissioner Griffin has her turn.

Thank you.

CHAIR EARP: Thank you.

Commissioner Griffin?

COMMISSIONER GRIFFIN: I, too, want to thank Carol and other people from the Office of Legal Counsel. I know you've been working on this for many years and maybe many years to come.

Apparently there has been this long, very tortured history behind our attempts to update UGESP, and we set forth our additional Q&As clarifying the definition of "job applicant" four years ago, and unfortunately instead of voting on that proposal today, which is long overdue, we're presented with a stark choice. That's s-t-a-r-k. It even starts to sound funny to me.

VICE CHAIR SILVERMAN: That's the first step to recovery.

(Laughter.)

COMMISSIONER GRIFFIN: Renew UGESP under the Paperwork Reduction Act for three years without any further guidance from the Commission or allow UGESP to lapse in its entirety based on OMB's apparent assertion that they would not continue the three-month renewal process we were operating under.

I think we all know that hiring discrimination is difficult enough to get at. The difficulty is increasing with this whole age of -- and wholesale use of Internet applicants, Internet-based applications and all the resume databases that have cropped up, and our inability to get a good definition out there on who's an applicant is problematic.

I think it's essential that we update the guidance to further define what an applicant is in this age where the Internet is an omnipresent tool in finding a job.

Online application processes are increasing at a rapid rate. Many employers are saying that's the only way you can actually apply for a job. And they're using online employment testing to actually whittle down the number of applicants. The proposed Q&As that we have, for example, make clear that once an employee used an online test, the individual taking the test is considered an applicant, and the employer was subject to UGESP requirements. This type of record keeping is essential to determining whether the test does have a disparate impact.

I'm also concerned that allowing UGESP to be renewed without further clarification of what constitutes an applicant leaves another agency, the Department of Labor's OFCCP, with the most current guidance on defining what an applicant is. Their regulation, published in October 2005, is more restrictive and does not conform to what I believe this definition should look like. I'm especially troubled by their requirement that a job seeker indicate that he or she possesses the basic qualifications for the position in their expression of interest in order to be considered an applicant.

In their example of how this would affect employment tests, they appear to assert that despite requiring every job seeker to take an employment test, only those test takers who also meet the basic qualifications of the position would be considered actual applicants. And this seems to contradict the guidance on employment tests that's set forth in our own proposed Q&As, which I read to require that anyone taking an employment test would be considered an applicant.

And while it may be argued that the Commission's enforcement authority differs from that of OFCCP, our failure to provide this up-to-date definition leaves the false impression that OFCCP speaks for the government as a whole on this question.

Despite these concerns, I think it would be worse to allow UGESP to lapse. Without the guidelines, the ability to determine whether an employer's selection procedures violate Title VII would be made even more difficult. The Commission needs the tool that's provided by UGESP to insure that an employer's hiring process doesn't have the disparate impact on minorities and women.

And in the Internet age, it's even more important that the EEOC prevent employers from using such technology to screen out applicants for a discriminatory purpose. For this reason and with some reluctance, my inclination is to vote to approve the renewal of UGESP under the Paperwork Reduction Act. We've already been through a discussion about that.

But I also expect the Commission to provide new guidance on the definition of an Internet applicant as soon as possible once UGESP is renewed. The hiring process has entered a new age, and the Commission, if it wants to retain its leadership as the paramount law enforcement agency in the fight against employment discrimination, must provide clear and appropriate guidance on this important subject.

Thank you, I have one question. How am I doing here for time?

Carol, I'm pretty sure we got comments from people when we first sent out those proposed Q&As. Was there anything significant highlighted by those comments that you could share with us that might give us some direction?

MS. MIASKOFF: Moving forward, we received comments from civil rights groups and from obviously employer groups and from contractor groups. As a general matter, civil rights groups certainly wanted more data to be kept, and I think one of the sort of interesting points is that all of the commentors focused on the idea of considering an individual for employment. The civil rights groups from the perspective of, say, any individual who the employer seriously looked at, even if they didn't follow the established procedures, should be an applicant because they were considered, and the employer sort of from a perspective of you first have to go through the filter of following the proper procedures, and then if you're considered, you should have a prong in there saying that you're only an applicant if you're considered after that.

And we really got into, it's pretty obvious into a lot of arcane discussion about what "is considered" means, a philosophical discussion almost, but you can see how those different approaches could lead to very different results actually in terms of the amount of data that is kept and when the impact analysis starts, which is really what this is all about.

COMMISSIONER GRIFFIN: Right. Thanks.

CHAIR EARP: Vice Chair, did you have any follow-up questions or comments?

VICE CHAIR SILVERMAN: Not yet. I may have one after. I'm still sort of formulating it.

CHAIR EARP: Okay. Commissioner?

COMMISSIONER ISHIMARU: Thank you, Madam Chair.

Carol, can you give us a feel for why it took a number of years to get to this point? I know that OFCCP came out with their rule or their Q&A, I guess, for their agency back in 2005, and here we are in 2008 still trying to struggle. I guess we were never able to reach a consensus, but was there ever thought given in the post 2005 period for the EEOC to come up with its own guidance for its programs, much as OFCCP did?

MS. MIASKOFF: Well, the answer to that is no, and what I'd like to say right away is I think, in part, the answer was no because the more thought that we as staff put into this, the more we started to think that the sort of laser focus on who is an Internet applicant might not, in fact, be the most efficacious way for EEOC to get at, you know, how is discrimination happening now that people are in some cases applying all the time, you know, for jobs over the Internet.And that this sort of almost preservative focus on Internet applicant was losing sight of some of the bigger issues, and also as a practical matter, as technology developed, as ability to store data and on sort of an online service provider capacity developed, wasn't as critical as it initially seemed when this started almost ten years ago. So I think the understanding of the whole process started to shift, so that's part of the answer.

And the other answer, as you said, I mean, I can't publicly at a public meeting go into details of deliberations, but the UGESP agencies are simply unable to reach agreement, and looking back at the materials to prepare for this meeting, it really reinforced it that we essentially kept going in cycles over the same issues, and the first round, in fact, was between 1999, when we filed the routine PRA extension, and July 2000, when OMB issued an 18-month extension conditioned on our trying to work it out. Well, basically we had an initial attempt in there, and consensus could not be reached. So OMB said, you know, "Go off on your own and work it out." And every since then essentially we've been engaged in a returning cycle of efforts to work it out, and it just has proved intransigent, I guess.

COMMISSIONER ISHIMARU: Right, but OFCCP was able to work through its issues at least as far as its jurisdiction went and came out with a standard. Now, I would take it from the lack of consensus comment that the EEOC doesn't necessarily think that the OFCCP standard is binding on the EEOC for EEOC purposes. That question is left untouched by the OFCCP standard.

MS. MIASKOFF: Well, I think if you just as a matter of legal analysis, that you do get to that result because OFCCP standard is incorporated in OFCCP's unique personal record keeping rule, you know, just as EEOC has its unique record keeping role. OFCCP put this definition and these requirements in its own unique record keeping role.

So clearly, it is under the authority of that agency and the executive order that it administers, and it is not part of EEOC's record keeping order, rule, pursuant to Title VII.

COMMISSIONER ISHIMARU: Right.

MS. MIASKOFF: So, there you go.

COMMISSIONER ISHIMARU: But I would assume that by OFCCP coming up with their standard, that was not a standard that the EEOC agreed with.

MS. MIASKOFF: Yes, that is correct.

COMMISSIONER ISHIMARU: Okay, but what our standard is, since we were working on the consensus model, we never reached that point of coming to a standard.

MS. MIASKOFF: That is correct.

COMMISSIONER ISHIMARU: But might the agency, this agency, EEOC, come up with its own standard or is that something that we need to deliberate further about and to see whether that's a prudent course to take?

MS. MIASKOFF: Well, personally, I mean, my personal opinion is it's something that we should deliberate about and see if it's, indeed, the most efficacious way at trying to start getting at how is discrimination happening in this new context.

COMMISSIONER ISHIMARU: You know, Madam Chair, I think this obviously was not started under your watch. I just find it troubling that this period of time has lapsed, that we were unable to come to closure, that we as a body never grappled with these questions. And as we move forward from here, one possibility might be for the Commission as a body to start thinking about this rather than to have it just in this PRA vote.

But the whole question of Internet applicant is an interesting one, and, you know, whether the extent of discrimination that may be going on against applicants for jobs as we talked about in past meetings is an under studied issue; and I would suggest that we might think about holding some sort of forum, whether it's a meeting or something on a Commission level to deal with this, because I know in informal discussions that I've had with a variety of people, the possibilities for abuse, the possibilities for problems are out there. Whether it happens or not, I frankly don't know, but I think it's something that we may want to think about for the future.

I have a couple of technical questions, but I'll pass until my next round.

CHAIR EARP: Okay. Commissioner Griffin?

COMMISSIONER GRIFFIN: You know, as I think through this, I, too, hope that we can, you know, do something as a body to at least, you know, rejuvenate these conversations around, you know, what we believe an applicant should be and how and when to start that impact analysis, as you said.

I'm concerned too, as I said earlier, I'm concerned that because OFCCP's got this definition out there and we really don't, that, you know, people are going to look to that for guidance. Do you --

MS. MIASKOFF: Well, you know, there is a definition out there of applicant that's in the original Q&As issued in 1978, and it's basically that given an employer's application procedures, an individual has expressed an interest in an employment opportunity.

COMMISSIONER GRIFFIN: But it didn't contemplate the Internet?

MS. MIASKOFF: No, it didn't, but that doesn't necessarily automatically mean it's not flexible enough to accommodate it. So there is a standard out there, and there is a standard that employers have known about and have been working with for many years.

I think when this started, the concern primarily in the contractor community was about the burden that this existing definition would result in in terms of record keeping, and I think, you know, it's far from me to say that that burden issue is not there. I mean, I'm sure it is, but the technology really, really has evolved. I mean when we started working on this, we heard employers worried that they'd have to buy, you know, huge servers and put them out in Utah to store all of this data, and the cost was going to be overwhelming. And I don't think that kind of fear has materialized because of developments in technology, frankly, that the data can be stored in other fashions, you know, in cyberspace essentially.

COMMISSIONER GRIFFIN: Are they not worried because you've got to go a great distance to prove you're an applicant at this point and they don't have to actually store all of that data right now?

MS. MIASKOFF: You know --

COMMISSIONER GRIFFIN: That could be part of it, too.

MS. MIASKOFF: That could be part of it, too, obviously. I can only say anecdotally, you know, based on just my conversations with folks, which is very anecdotal, that there are certainly instances out there where employers are keeping fairly complete records, and indeed, are collecting the data right at the point when people apply for the job for a variety of reasons, probably mostly practical and possibly relating to RQ and A-15, but they are collecting the data at the threshold as part of the initial application process and then, you know, keeping it in a confidential manner, and they can use that then if they're a federal contractor to create the files, the subset of files they would need for purposes of an OFCCP audit obviously. But anecdotally, you know, that is happening.

COMMISSIONER GRIFFIN: Well, again, it would be great if we could do something I think in a more formal way that would allow us to actually get beyond the anecdotal and really find out what is happening.

MS. MIASKOFF: I think that would be great.

COMMISSIONER GRIFFIN: Yes.

CHAIR EARP: Vice Chair?

VICE CHAIR SILVERMAN: It struck me as I was looking at the rule in front of me and looking at the Code of Federal Regulations that the whole idea of it -- and I talked about this at the beginning -- was one set of principles for all of the federal government agencies, and the record keeping requirement was put on us essentially at the EEOC or was it put on each agency individually?

MS. MIASKOFF: It's on us at the EEOC. We're the lead EEO agency for the federal government, and this is an EEO rule. So it's our responsibility to keep it current.

VICE CHAIR SILVERMAN: So Department of Labor did their own thing and now we're left, but if we were to move forward with a separate set, our own set of requirements, then we'd no longer have Uniform Guidelines, I take it. We'd have different guidelines for sure?

MS. MIASKOFF: Arguably, yes.

VICE CHAIR SILVERMAN: Unless an employer can comply with both. I guess it depends on how it came out?

MS. MIASKOFF: Right. I think the question is can they be harmonized in the real word, not just in --

VICE CHAIR SILVERMAN: And what this comes down to is what employers should be collecting in terms of applicant, you know, data, but also what would be usable for this agency, for that agency, for the other agencies because if we collect everything under the sun, if they do, we're really not getting real answers to questions, and we're never going to know if discrimination existed, right?

I mean, if it's so broad that it's not usable for anybody?

MS. MIASKOFF: Well, I don't know if necessarily broad. I mean, this is just my opinion.

VICE CHAIR SILVERMAN: I mean everything, you know.

MS. MIASKOFF: Yeah, yeah. Broad doesn't necessarily mean unusable. Again, anecdotally, what I've seen when I've personally applied for a job at Lowes and also to be an engineer in western Canada, I've gone online to do these and to see how they work. They just have little pop-up windows, you know, at the end of the process.

VICE CHAIR SILVERMAN: That said, "You're a lawyer and you can't apply to Lowes?"

MS. MIASKOFF: Yeah, why are you looking here? No, but it would say basically the feds make us ask this, we're not going to use it against you; please tell us, you know, your gender, you know, little bubble, bubble, race, you know, bubble, bubble, bubble, and you know, just check it off and it will be kept confidential, blah, blah, and that's it, you know, and you just click.

It's not -- that's it. It's pretty simple, frankly.

VICE CHAIR SILVERMAN: But I guess I was more getting to not the issue of what they ask you,…

MS. MIASKOFF: Yes.

VICE CHAIR SILVERMAN: … but whether or not they consider you to be an applicant, you know, and therefore need to store it so they can look at the whole picture, which is the issue.

MS. MIASKOFF: Yes, so what you're saying is the burden if they had to do impact analysis on every screen?

VICE CHAIR SILVERMAN: Well, even if we had to do it, if we looked at a whole big database that had a lot of -- it's just these are really challenging issues, and you know, we certainly struggled with them…

MS. MIASKOFF: Yes.

VICE CHAIR SILVERMAN: … and will continue to struggle with them.

So I guess there were sort of two points that I was saying. One is, they wouldn't be uniform, and you know, maybe that's okay, but I suspect that the employers that are complaining about this are not saying, "Come up with a separate standard." They're saying, "Get together," and so far, that's not happened.

MS. MIASKOFF: Sure, sure.

VICE CHAIR SILVERMAN: But separate standards, then they're no longer the Uniform Guidelines.

MS. MIASKOFF: Sure, sure. Absolutely. I think historically looking at it, and this is really nothing more than a point of interest essentially, yes, they are called the uniform standards, but this process of working on these issues has always been contentious, and there has always been a centripetal force, I think, at play to pull the agencies apart on this.

Before there were the Uniform Guidelines, there were separate guidelines for each of the four agencies, indeed, five at that point, one of the agencies no longer exists, in the Treasury Department, and there were separate guidelines, and then they managed to pull them all together in the late '70s through a quite torturous process from what I can tell, and then they were essentially stable, you know, for those 30 years until we started revisiting it.

VICE CHAIR SILVERMAN: Okay. Thank you.

CHAIR EARP: Ms. Miaskoff, for those of us who may not be quite so optimistic that we could quickly restart the discussions and get the agencies involved to a point of consensus, if that paradigm existed, we're back in discussions, but we can't reach consensus; would it be your opinion that the original 1978 definition is flexible enough, broad enough, and that our attorneys are nimble enough, talented enough that if an appropriate set of facts presented itself, despite the lack of a single definition, that we could and would address the prosecution of that case?

MS. MIASKOFF: Yes, I do think so. It wouldn't be a perfect situation obviously, but I do think that the standard is flexible enough that employers have an understanding of it at this point and that it would enable us to do our enforcement work.

CHAIR EARP: So during the interim, assuming we approve the vote today, in the interim while we're continuing to try to harmonize the various agencies who have responsibility, if you could, how would you rate the risk that we would miss an opportunity to prosecute an employer based on these issues, the rule? Low, medium, great?

MS. MIASKOFF: I would say, you know, at the low end frankly.

CHAIR EARP: Okay, thank you.

MS. MIASKOFF: You're welcome.

COMMISSIONER GRIFFIN: Can I just follow? Could I steal a little bit of your time Stuart, and follow up on that question?

Under the '78 standard, is it flexible enough to actually say that a job seeker who has to take an online employment test is an applicant?

MS. MIASKOFF: Absolutely.

COMMISSIONER GRIFFIN: It is?

MS. MIASKOFF: Yes, it is.

COMMISSIONER GRIFFIN: Okay.

COMMISSIONER ISHIMARU: But is it flexible enough to deal with the situation where companies may not actually take applications, but they mine databases for qualified people who they want? Is it that flexible? If we found a company that was going off and going through the databases of people who were out there, say, at monster.com, and you know, this is one of the issues that we've talked about informally; these new things have come up in recent years of employers look for employees in different manners. It did not exist in 1978, did not exist ten years ago, so if an employer is data mining, not asking people to apply for jobs, but are looking for people, would those people be applicants under the flexible definition that's in the Uniform Guidelines?

MS. MIASKOFF: Right, what I would say is, no, they wouldn't because the current definition hinges on the expression of interest from the individual. But what I would also say is that UGESP, by its terms, applies to the selection process; it doesn't apply to recruitment, and I think there is an argument that the data mining piece of things is the modern online version of recruitment.

COMMISSIONER ISHIMARU: But if they're the only ones in the recruitment pool, if a company mines databases…

MS. MIASKOFF: Yes.

COMMISSIONER ISHIMARU: … to find qualified people that they want to work for them, and if they're the only people in the applicant pool…

MIS MIASKOFF: Right.

COMMISSIONER ISHIMARU: … and then are thus selected, would that then create a situation where it would be covered?

MS. MIASKOFF: No, what I would say though is simply because there would be a quite limited applicant pool in that instance, that doesn't --

COMMISSIONER ISHIMARU: Not necessarily, there could be, you know, hundreds of qualified people that they find from the monster.com database of people who look great, yet you know, they may come from a certain zip code, they may be all men. Would that be covered?

MS. MIASKOFF: My answer, I guess, and this is one of the reasons why I think it's sometimes not helpful to focus exclusively on Internet applicant, is, until they -- the answer is, no, they wouldn't be covered until the employer said to them, "Are you, You know, I found you on line, are you interested in this job?" and they said yes. That would make them an Internet applicant.

COMMISSIONER ISHIMARU: I see.

MS. MIASKOFF: However, for purposes of Title VII and employment discrimination, you know, Title VII applies to recruitment. You can't do recruitment in a discriminatory fashion, and you know, if indeed, making data mining, you know, is your sole source, you know, of firms that may not have a very diverse employment pool themselves, that indeed, you know, may be discriminatory.

So that issue is still out there, and I would say that's in a sense the important issue to look at, …

COMMISSIONER ISHIMARU: Yes.

MS. MIASKOFF: …not necessarily when do they become the applicant.

COMMISSIONER ISHIMARU: And certainly we've seen this in the lending field where computer databases are used to redline out certain communities.

MS. MIASKOFF: Absolutely.

COMMISSIONER ISHIMARU: And you know, could the same thing go on here? Again, something that I think sort of begs further study and further deliberation as we move forward.

Carol, I have a couple of technical questions.

MS. MIASKOFF: Sure.

COMMISSIONER ISHIMARU: I just want to reiterate or just to make sure that by voting today on this three-year proposal, the three-year waiver, that we are not precluded from acting at any time within the three-year period to come up with either a UGESP solution or an EEOC solution to this problem.

MS. MIASKOFF: That is correct.

COMMISSIONER ISHIMARU: And I understand that if we do approve it today, that the document, the product will be sent to OMB for its approval.

When will we know what OMB decides to do?

MS. MIASKOFF: Well, actually it won't be sent immediately to OMB for its approval. What'll happen under this somewhat arcane process of the Paperwork Reduction Act is, it results in a lot of paperwork, and --

(Laughter.)

COMMISSIONER GRIFFIN: Of course.

MS. MIASKOFF: Of course, right.

So we will have to take this notice that you will be voting on today, and we will publish that in the Federal Register. It will not formally go to OMB. It will simply go in the Federal Register and say, "Hey, world, we are going to apply to OMB and submit this package to OMB. This is what we're contemplating. Would you like to comment on this in terms of its burden?"

And then we get the comments back. Then we do the package. Then we formally submit it to OMB. After the 60-day comment period, after we go through the comments, then we formally submit it to OMB and there's a second comment period. Comments at that point go directly to OMB with copies to us, and then OMB has 30 days after the end of the comment period to decide whether or not it's giving us the Paperwork Reduction Act authorization.

So what's going on now, I think, is that OMB, if they see that we are starting this process here by publishing the notice that we intend to do this, they'll say fine and, you know, bridge us over until they officially grant the three-year, which, I figure at the earliest probably would be next fall.

COMMISSIONER ISHIMARU: So you have no fear that OMB will rescind the requirements under the Paperwork Reduction Act that UGESP information be kept come March 31st, if we vote positively today.

MS. MIASKOFF: I don't think so, no.

COMMISSIONER ISHIMARU: And are you aware of any time when OMB has not approved a situation like this or is this fairly routine?

MS. MIASKOFF: Oh, this is fairly routine. This is fairly routine. And I think historically, yes, there have been times, not with EEOC, with other agencies, where they have not approved things, but that doesn't necessarily mean that -- if it's an existing record keeping rules they don't let it lapse either. They sort of send you back to the drawing board on whatever the changes might be.

COMMISSIONER ISHIMARU: So based on that assurance, by voting today it sounds like we're safe in not having this lapse even though it sounds like it will not be official until at some point in the future.

MS. MIASKOFF: Correct, yes.

COMMISSIONER ISHIMARU: Thank you, Madam Chair.

COMMISSIONER GRIFFIN: And by comments, you mean comments on the burden, the paper burden. You're not talking about comments on the actual --?

MS. MIASKOFF: Well, I'll tell you, Paperwork Reduction Act notice is very formulaic, and it has four standard questions on which we solicit comments, and they have to do with the burden and the burden only, and then I guess also, you know, counterbalanced by the effectiveness of the record keeping.

That said, I don't know of any self-respecting lawyer who, if posed by such a notice, if they wanted to say more, nothing's going to stop them, and I'm sure they will say more, but indeed, we're only officially soliciting comment on the burden and the record keeping, you know, aspects.

COMMISSIONER GRIFFIN: Okay, one last thing. I keep going back to the '78 standard and its flexibility, but, you know, my guess is if it's so flexible and it covers everything anyway, why are we proposing Q&As to update? You know, we were doing it for a reason, and I'm concerned that an employer will after the fact say, "Wow, I didn't know this Internet, you know, this person that contacted me via the Internet or sent something in, or that I found, is an actual Internet applicant," and then won't have kept the data. And I know I'm probably getting into some of those arcane chicken-egg discussions that you've been having for years with these other agencies, but I'm sort of at my end at the chicken and egg stage, too, where, you know, if we don't do something and we say '78 is good enough and flexible enough, but, employers then say, you know, we didn't collect that data because we didn't know, where are we? We're not enforcing anything, right?

MS. MIASKOFF: Well, yeah. I think to some degree some of those chicken and egg discussions, you know, I'd love to have with you, but a lot of them really do get into the deliberative process issues between the agencies.

That said --

COMMISSIONER GRIFFIN: Well, I'm really not looking for that. I'm actually looking for more reassurance that the '78 standard in whatever period of time we are left with that only, helps us in enforcement.

MS. MIASKOFF: Personally I think it does, and actually to the extent I think a subtext of your question was the fact that, you know, it came out in 1978 in a Q&A document so no one even knows about it, which is a real concern.

I think it has gotten renewed attention through this process again, so people are --

COMMISSIONER GRIFFIN: So it was a very good idea to have this meeting, right?

CHAIR EARP: Are there further questions or comments?

COMMISSIONER GRIFFIN: No.

CHAIR EARP: No? I think what we have before us today is an attempt to balance competing interests. The solution today is not a perfect one, but balanced against allowing the data collection aspects to lapse, I think we have no choice but to vote yes.

Unless there are additional comments or questions at this time, I'd like to bring the discussion to an end and ask for a motion to approve.

VICE CHAIR SILVERMAN: So moved.

CHAIR EARP: Is there a second?

COMMISSIONER GRIFFIN: Second.

CHAIR EARP: Is there discussion?

(No response.)

CHAIR EARP: Hearing none, all those in favor, please say aye.

(Chorus of ayes.)

CHAIR EARP: Opposed?

(No response.)

CHAIR EARP: The ayes have it. The vote passes unanimously.

Thank you very much.

COMMISSIONER GRIFFIN: Thank you.

CHAIR EARP: Carol, again, you and the Office of Legal Counsel staff who have put in tremendous time, we are grateful and look forward to taking this to the next step.

MS. MIASKOFF: Thank you.

CHAIR EARP: Thank you.

May I have a motion to adjourn the meeting?

COMMISSIONER GRIFFIN: So moved.

CHAIR EARP: Second?

COMMISSIONER ISHIMARU: Second.

CHAIR EARP: All in favor.

(Chorus of ayes.)

CHAIR EARP: The meeting is adjourned.

Thank you.

(Whereupon, at 11:00 a.m., the Commission meeting was concluded.)

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