PRESENT:

JACQUELINE A. BERRIEN, Chair
STUART J. ISHIMARU, Commissioner
CONSTANCE S. BARKER, Commissioner (via telephone)
CHAI R. FELDBLUM, Commissioner
VICTORIA A. LIPNIC, Commissioner

ALSO PRESENT:

P. DAVID LOPEZ, General Counsel
PEGGY R. MASTROIANNI, Legal Counsel
BERNADETTE B. WILSON, Acting Executive Officer

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

TABLE OF CONTENTS

AGENDA ITEM

1. Presentation and voting on
   Enforcement Guidance on the
   Consideration of Arrest and
   Conviction Records in Employment

P R O C E E D I N G S

(9:32 a.m.)

CHAIR BERRIEN: Good morning everyone. This meeting of the Equal Employment Opportunity Commission is now called to order. I want to thank everyone who is present with us in our meeting room in Washington and also for everyone who is able to, and is watching us, on streaming.

In accordance with the Sunshine Act, part of today's meeting is open to public observation of deliberations and voting, and part of the meeting will be closed. The closed portion of today's meeting will follow immediately after the open session. At this time I'm going to ask Bernadette Wilson to announce any notation votes that have taken place since the last Commission meeting. Okay.

COMMISSIONER FELDBLUM: Just toasting Commissioner Ishimaru right now, that's what I say.

CHAIR BERRIEN: Oh, where would the fun be in that? We've got to wait. Actually, while we are waiting though, I'll just confirm, Commissioner Barker is joining us by telephone today, so I do want to make sure that the connection is clear, that you can hear us and that we can here you. Commissioner, can you hear us?

COMMISSIONER BARKER: Yes, Madam Chair, I'm connected and hear you loud and clear.

CHAIR BERRIEN: Great. Thank you so much. And we've now been joined by Bernadette Wilson who will announce the votes that have taken place since our last Commission meeting.

MS. WILSON: Good morning. And before I begin, is there anyone in need of an interpreter, sign language interpreter services? Okay, good morning again, Madam 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 conversation 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 case of emergency, there are exit doors to the right and left as you exit this room. Additionally, the rest rooms are down the hall to the right and left of the elevators.

During the period February 18th through April 20th, 2012, the Commission acted on nine (9) items by notation vote:

Approved Amicus Participation in one (1) case;

Approved Fiscal Year 2012 budget allocations for State and Local Programs;

Approved labor economist services for Mavis Tire Supply Company et al., and for Texas Roadhouse Inc. et al;

Approved the Spring 2012 Regulatory Agenda;

Approved Subpoena Determinations for Farmer's Pride Inc. and Quicken Loans;

Approved a request to close a portion of the April 25th, 2012 Commission meeting; and,

Approved a resolution honoring Charles E. Guerrier on his retirement.

Madam Chair?

CHAIR BERRIEN: Thank you Ms. Wilson. And one other preliminary matter, at the outset, I would like to also note that today is Administrative Professionals Day and this week is Administrative Professionals Week, so I'd like to begin by acknowledging and thanking all of the men and women across the country who provide tremendous administrative support to the EEOC in our 54 offices. And also, to all Administrative Professionals in the nation's workforce.

The final agenda for today's meeting, which is distributed to those entering the room on their way in, includes only one item, which is the presentation and voting on an Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment. Immediately following the public meeting, the Commission will conduct a closed meeting pursuant to an earlier vote of the Commission. I want to note that this is Commissioner Ishimaru's last meeting with the Commission. We have benefitted enormously from his nearly nine years of service and I want to inform everyone present that before we adjourn our public meeting; we've reserved time for Commissioner Ishimaru to make some remarks and for his Colleagues on the Commission, and the General Counsel, to pay tribute to his work.

At this time, I would like to introduce Assistant Legal Counsel Carol Miaskoff and Acting Assistant Legal Counsel Tanisha Wilburn of our Office of Legal Counsel. Please come forward. They will be presenting the draft Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964. Ms. Miaskoff is the Acting Associate Legal Counsel for Title VII, the Age Discrimination in Employment Act and the Equal Pay Act in the Office of Legal Counsel, and Tanisha Wilburn is Acting Assistant Legal Counsel. Thank you both for being here and you can begin.

MS. WILBURN: Okay.

MS. MIASKOFF: Okay.

MS. WILBURN: Good morning Madam Chair and Commissioners. I am Tanisha Wilburn, Acting Assistant Legal Counsel in the Office of Legal Counsel. Assistant Legal Counsel Carol Miaskoff and I will summarize the proposed Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 as amended.

The Enforcement Guidance before you consolidates and supersedes the Commission's policy statements from 1987 and 1990 on this issue, as well as the short discussion in Section 6(b)(2) of the Commission's 2006 Race and Color Discrimination Compliance Manual Section. As such, this proposed Guidance would represent the Commission's first major statement on this important topic in over 20 years. At the same time, the Guidance largely reasserts fundamental legal positions the Commission staked out over 20 years ago providing more in-depth legal analysis and updated factual research.

The proposed Enforcement Guidance begins by setting forth the reasons why this update is timely. In the last 20 years, technology has changed not only the way people apply for jobs, but also the way employers screen people for jobs. The review of criminal records is often part of that screening process. There are now many online sources for obtaining criminal history information about applicants and employees. Commercial services have developed private databases of criminal records from which they provide criminal history information to employers for a fee, subject to the Fair Credit Reporting Act.

In a 2010 survey conducted by the Society for Human Resources Management, a total of 92% of the responding employers reported that they subjected some or all of their job applicants to criminal background checks. Generally, employers have cited legal requirements as well as concern about negligent hiring liability, theft, and workplace violence as reasons for using criminal background checks.

As employers have gained more access to criminal history information, there has also been an increase in the number of Americans who have had contact with the criminal justice system in the last 20 years. For example, in 1991, 1.8% of the adult American population had served time in prison. By 2007, 3.2% of all adults in the American population were under some form of correctional control involving probation, parole, prison, or jail.

If incarceration rates do not decrease, the Department of Justice has projected that approximately 6.6% of all people born in the United States in 2001 will serve time in state or federal prison during their lifetimes.

Arrest and incarceration rates continue to be disproportionally high for African-American and Hispanic men. For example, African-Americans and Hispanics are arrested at a rate that is two to three times their proportion of the general population.

Assuming that current incarceration rates remain unchanged, approximately 1 in 17 White men is expected to serve time in prison during his lifetime; approximately 1 in 6 Hispanic men is expected to do so; and approximately 1 in 3 African-American men is expected to be incarcerated in his lifetime.

Finally, there is a need for more legal guidance on this topic under Title VII. All three EEOC policy documents on this topic predated the Civil Rights Act of 1991. The Act codified disparate impact analysis, which is often used to challenge criminal record screens as discriminatory under Title VII.

The Commission's February 1987 Conviction Records policy statement and its 2006 Compliance Manual on Race and Color Discrimination were the only EEOC documents to include discussions of disparate treatment discrimination and the use of criminal records. Thus, this topic merited more attention.

Finally, in 2007, El v. Southeastern Pennsylvania Transportation Authority decision, the 3rd Circuit Court of Appeals noted that the Commission's 1987 and 1990 policy statements did not provide sufficient legal analysis and factual research.

This proposed Enforcement Guidance is intended to respond to these concerns.

To ensure that it considered the latest research and diverse perspectives on this issue, the Commission held public meetings in 2008 and 2011 on the use of criminal records in employment decisions. Panelists at both meetings submitted detailed written statements, which staff analyzed, and the Chair and Commissioners questioned the panelists during the meetings. The Commission also invited interested parties to provide feedback and written comments after the July 2011 meeting. As a result, the Commission received and reviewed approximately 300 written comments. Prominent business and civil rights groups were well represented, in addition to many individuals.

We will now summarize the proposed Enforcement Guidance. This document reaffirms the Commission's fundamental Title VII policy positions on this topic and provides significantly more in-depth legal analysis and factual research.

First, like the earlier documents, the proposed Enforcement Guidance focuses on criminal record screening and employment discrimination based on race and national origin.

Second, the proposed Enforcement Guidance discusses the differences between the treatment of arrest and conviction records. For example, the fact of an arrest does not establish that criminal conduct has occurred. Therefore, an exclusion based on an arrest, in itself, is not job-related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question. By contrast, a conviction record will usually serve as sufficient evidence that a person engaged in a particular conduct. In certain circumstances however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.

The main discussion in the proposed Enforcement Guidance concerns disparate treatment and disparate impact analysis. Under disparate treatment analysis, a violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin. For example, there would be Title VII disparate treatment liability where the evidence shows that a covered employer rejected an African-American applicant based on his criminal record, but hired a similarly situated White applicant with a comparable criminal record. There are several kinds of evidence that may be used to establish that race, national origin, or another protected basis motivated how an employer used information about criminal records in its selection decisions. These include: biased statements; inconsistencies in the hiring process; and comparisons with similarly situated applicants and employees.

I will now turn the presentation over to my colleague, Carol Miaskoff, Assistant Legal Counsel.

MS. MIASKOFF: Thank you Tanisha. I will summarize the discussion of disparate impact analysis in the proposed Enforcement Guidance. A covered employer is liable for violating Title VII when the plaintiff demonstrates that the employer's neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity. The discussion in the proposed Enforcement Guidance is organized according to the elements of this case.

The first step in disparate impact analysis is to identify the particular policy or practice that causes the disparate impact. For criminal record exclusions, relevant information includes the text of the policy or practice, associated documentation, and information about how the policy or practice was actually implemented. More specifically, information also includes which offenses or classes of offenses were reported to the employer, (for example, all felonies, all drug offenses, et cetera); whether convictions, (including sealed or expunged convictions), arrests, charges, or other criminal incidents were reported; how far back in time the reports reached, (for example, the last five years, ten years, 20 years); and the jobs for which the criminal background screening was conducted.

The next step in disparate impact analysis is determining disparate impact. Here, the Enforcement Guidance provides more detail than the Commission's 1987 and 1990 policy statements, but sets forth the same policy positions.

The proposed Enforcement Guidance begins by recounting national criminal data for African-Americans and Hispanics in significant detail. The national data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. By doing so, this national data provides a basis for the Commission in its investigations to further investigate Title VII disparate impact charges challenging criminal record exclusions.

As before, the respondent has the opportunity during the investigation to show, with relevant evidence, that its employment policy or practice does not cause a disparate impact on the protected groups. Finally, the Commission assesses all relevant evidence when making a determination of disparate impact.

In litigation, after the plaintiff establishes disparate impact, Title VII shifts the burdens of production and persuasion to the employer to "demonstrate that the challenged practice is job-related for the position in question and consistent with business necessity." The proposed Enforcement Guidance analyzes the legal genesis of this standard in Supreme Court precedent and in the Civil Rights Act of 1991. Then, it focuses on the two major Federal Appellate decisions involving criminal records exclusions.

Specifically, the 8th Circuit in its 1977 Green v. Missouri Pacific Railroad decision, identified three factors for assessing whether a criminal record exclusion policy is job-related and consistent with business necessity. These three factors were: the nature and severity of the offenses; the amount of time elapsed since the offenses or completion of the sentences; and the nature of the jobs held or sought.

Subsequently, in 2007, the 3rd Circuit in El v. Southeastern Pennsylvania Transportation Authority, analyzed the Supreme Court disparate impact precedent in detail to emphasize the importance of careful factual analysis in assessing whether criminal record exclusion policies are, in fact, job related and consistent with business necessity. The 3rd Circuit observed that hiring always involves assessing risks and it observed that criminal record exclusions need to "accurately distinguish between applicants [who] pose an unacceptable level of risk and those [who] do not."

Based on the Supreme Court precedent, the statute, and the Federal Appellate decisions, the proposed Guidance states that there are two circumstances in which the Commission believes employers will consistently meet the "job-related and consistent with business necessity" standard. One, where the employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines for Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); or, two, where the employer develops a targeted screen considering at least the nature of the crimes, the time elapsed, and the nature of the jobs, the three Green factors; then the employer's policy also provides an opportunity for an individualized assessment for those people identified by the screen to be excluded in order to provide a way to determine if the policy, as applied, is also job-related and consistent with business necessity.

Although Title VII does not require individualized assessment in all circumstances, the use of a criminal record screen that does not include individualized assessment is more likely to violate Title VII.

In order to provide more guidance about the second prong of this standard, based on the Green Factors, the proposed Enforcement Guidance provides a detailed discussion of each factor.

The first factor to analyze is the nature and gravity of the criminal offenses. This can be considered based on facts concerning, for example, the nature of the harm caused by the criminal conduct; or the legal elements of the crime; or whether the crime was categorized as a misdemeanor or a felony, among other considerations.

The second determination is how long a criminal record exclusion should last, or as the court in Green put it, the time that has passed since the criminal offense or completion of the sentence. A policy should specify the duration of all the exclusions it includes. Exclusions should not be unlimited. This determination should be fact-based as much as possible. For example, it can be based on a study, including recidivism studies, or on the duration of a federal statutory exclusion.

Last, but certainly not least, it is important to analyze the nature of the job held or sought. This should focus on identifying the job duties and functions of the position in actual practice and not just on paper in order to develop a narrowly-tailored criminal record exclusion.

As part of this process, employers may consider the level of supervision available, the amount of interaction with co-workers or customers, and the amount of access to vulnerable individuals, such as young children.

The proposed Enforcement Guidance then explains what it means by individualized assessment. Individualized assessment generally means that an employer notifies the individual that he may be excluded because of past criminal conduct; provides the individual an opportunity to demonstrate that the exclusion does not properly apply to him; and finally, considers whether the individual's additional information shows that the policy, as applied, is not proving to be job-related and consistent with business necessity. The individual's showing may include information that he was not correctly identified by the criminal record, for example, there are several people with the same name living in the same locality, or that the record is otherwise incomplete or inaccurate, for example, it does not report the disposition of an arrest or it incorrectly reports a conviction that was expunged.

Other relevant individualized evidence may include, for example, older age at the time of conviction or release from prison; evidence that the individual successfully, reliably, and safely performed the same type of work, post-conviction, with the same or a different employer; the length and consistency of employment history before and after the offense or conduct; rehabilitation efforts, for example, education and training; employment or character references, and any other information regarding fitness for a particular job; and whether the individual is bonded under a federal, state, or local bonding program.

To illustrate this entire analysis, the proposed Enforcement Guidance provides numerous hypothetical examples showing policies that are and policies that are not job-related and consistent with business necessity.

Finally, with respect to disparate impact analysis, the proposed Enforcement Guidance explains that, even if an employer successfully demonstrates that its policy or practice is job-related and consistent with business necessity; a plaintiff can still prevail if he can demonstrate that a less discriminatory, but equally effective employment policy or practice was available, but that the employer refused to adopt it.

The proposed Enforcement Guidance does recognize that in certain industries, employers are subject to various federal laws or regulations that restrict or prohibit the employment or licensing or registration of individuals with certain convictions. Compliance with a federal law or regulation is a defense to Title VII liability. However, employers will be subject to Title VII liability if their policies or practices go beyond the mandates of such federal requirements in a way that violates Title VII.

Finally, with respect to other federal matters, the proposed Enforcement Guidance discusses how Title VII applies these same broad non-discrimination principles to the federal government as an employer.

Unlike federal laws or regulations, state and local laws or regulations are preempted by Title VII if they "purport to require or permit the doing of any act which would be an unlawful employment practice" under Title VII. Therefore, if an employer's exclusionary policy or practice is not job-related and consistent with business necessity, the fact that it was adopted to comply with a state or a local law or regulation does not shield the employer from Title VII liability.

Finally, the Guidance concludes with some best practices for employers that may use criminal records to screen applicants or employees. Thank you for this opportunity to contribute to this important effort and to present this proposed Enforcement Guidance for your consideration today.

CHAIR BERRIEN: Thank you both for your presentations and we'll begin, now, with questions, statements, comments from the Commissioners, beginning with Commissioner Ishimaru.

COMMISSIONER ISHIMARU: Well thank you Madam Chair. It is quite something to be at my last meeting of the Commission; at least for me. And I want to thank you for all of your courtesies. Before I begin, I wanted to note, with sadness, the passing of our friend, John Peyton, who was the Director Counsel of the NAACP Legal Defense Fund, who passed away last month. Mr. Payton was a colleague of yours at the Legal Defense Fund, a brilliant lawyer, and a leader of one of the nation's leading civil rights law firms. And I remember when I first met John Peyton, I think in the '80s, as the courts were grappling with the whole question of Affirmative Action and I was working on Capitol Hill and this guy came up from a corporate law firm, from Wilmer Cutler, and Pickering, and I thought, well, who could this guy be? And he was brilliant. He gave such a clear explanation and statement on why Affirmative Action was necessary, needed, legal, that, for a lot of us who were working in the political realm; discussions were mumbled and jumbled. And John made it clear and made it shine. And his brilliance will be missed and I just wanted to note that for the record; quite a person.

CHAIR BERRIEN: Thank you.

COMMISSIONER ISHIMARU: You know, I must say that I had to chuckle as we were getting ready for this meeting. When I read my name on the editorial page of the Wall Street Journal, it gives me shivers sometimes, but it seemed like there was a lot of hoo-ha, a lot of commotion about the whole notion that we were taking up this issue today; that it was something new, and something radical, and something that we should be very afraid of. And I had to chuckle because the history of this issue at this Commission is a long one. As was noted in the presentations, it was under then Chairman Thomas, in 1987, when the Commission first voted on Enforcement Guidance and it was again in 1990 under Chairman Kemp when we dealt with Arrest Guidance.

This is not new and it was, we added something in our 2006 Compliance Manual Section under Chair Dominguez, I believe, and I know that my former colleague, former Chair Earp, had a big interest in this as well and when we were in the last days of her administration, we were considering this issue as well. And we thought we might be able to act on it back then, so this is nothing new. But yet, I'm delighted we're here today to vote on this. I know when I was sitting in the Acting Chair's Office, we took an immense interest in this issue and I'm delighted that under Chair Berrien that we've been able to bring it to a vote today. I know there's been a ton of work that's been put on it by so many people that I'll get to at the end of my statement, but I am delighted that we're getting to it today.

You know, the one thing that's been gratifying to me is that, throughout all of these years, throughout the 25 years that this has been here at this Agency, our analysis, our basic analysis, has been consistent and today we refine, and update, and develop it. And I'm proud to say that we are one of the places that has led the way on these issues. And I think, frankly, one of the reasons is that so many American families are affected by this. I think, Ms. Wilburn, in your statement, you talked about the number of families affected by this, people touched by people who have been in the criminal justice system and it is no real surprise, when you think about it, that this crosses partisan lines and that, in 2008, President Bush signed, with bipartisan support, the Second Chance Act, which is trying to grapple with the question of, how do we bring people who have been in the criminal justice system back into the mainstream? It's not an easy issue and I'm glad we're taking a step towards that today.

I would note that President Obama has made prisoner re-entry a top priority of his administration. I know the Chair and her designee, Todd Cox, sit on the Attorney General's Interagency Re-entry Council. This document will give the Re-entry Council yet another tool to use to bring people with criminal histories into the mainstream.

The document we, hopefully, will approve today is not radical, it's not new, but it is necessary. Much has changed in the last 25 years and not necessarily for the better. The rates of incarceration have risen tremendously and the impact based on race and national origin is all the more stark. At the same time, employers, in increasing numbers, are conducting background checks. And certainly, with the advent of the Internet, as we've talked about at past hearings, this has become more and more widespread. And the economic picture for African-Americans and Hispanics with criminal histories is dire.

The document we, hopefully, will issue today is sound and balanced. I believe it will provide essential guidance to employers, employees, and job seekers. In addition, it will support the work of our investigators and litigators who are processing charges and litigating cases involving criminal history records. I think I can say this, but the EEOC has over a hundred active investigations involving allegations of unlawful discrimination arising from criminal background checks. We are conciliating charges in this area, including one that we announced publicly, recently, against Pepsi, which resulted in over a $3 million settlement, and we're litigating cases, and will continue to do so. I wanted to pay tribute to that conciliation and the work of the Minneapolis and Chicago offices for bringing that one to a satisfactory conclusion.

The ability of African-Americans and Hispanics to obtain and maintain employment after prison is one of the paramount civil rights and economic justice issues of our time. I'm tremendously proud of our work in this area and once I leave here, I look forward to watching what the EEOC does in this area.

You know, I know there's been a lot of work that's been done over the past few weeks, and past few months, as I've been contemplating my departure and I just want to say a few thank yous. I wanted to thank Peggy Mastroianni and her team in the Office of Legal Counsel, Carol Miaskoff, Tanisha Wilburn, Teresa Guerrant, and Aaron Konopasky for their work. I thank my friend, the General Counsel, and his folks in the Office of General Counsel, especially Leslie Annexstein and Jerry Scanlan, for their very thoughtful feedback, especially to our office, of how this will work. And I think at the end of the day, we have coordinated this well.

Madam Chair, I want to thank the people in your office who worked on this, Patrick Patterson, Awo, Awo, I'm forgetting your last name, Sarpong Ansu, sorry, my apologies. I want to thank the rest of the people on the 6th floor, people in your office, Commissioner Feldblum, people in your office, Commissioner Lipnic, Commissioner Barker, the people in your office as well.

And I want to give a special thanks to Antoinette Eates in my office who was juggling this issue, as well as a number of other issues, as well as with the closedown of our office, and juggling all that at one time made for exciting times in our office, not without a least bit of screaming, all in good nature of course. But with that, I urge my colleagues to support this Guidance. I think this is Guidance that makes us all proud and I'm delighted that I will have an opportunity to vote on it at my last meeting. I thank the Chair.

CHAIR BERRIEN: Thank you Commissioner, and now, Commissioner Barker?

COMMISSIONER BARKER: Madam Chair, thank you. And before my time begins to run, I would like to apologize in advance, my voice is a little weak, and my comments, unfortunately, I think, are going to have to take me a little bit longer to read. And I would ask, in advance, for leave of the Chair to exceed the time limit by about a minute.

CHAIR BERRIEN: That's fine.

COMMISSIONER BARKER: Great, thank you. Madam Chair, fellow Commissioners, and members of the public who have joined us today. I object to and will vote against the proposed new Guidance on criminal background checks for four fundamental reasons. First and foremost, I object to the utter and blatant lack of transparency in the approval process. The proposed revision before us today represents a major shift in the advice we have given the American public for the last 22 years. Yet, we are about to approve this dramatic shift in our interpretation of the rights of job applicants and the obligations of America's businesses under Title VII without ever circulating it to the American public for review and discussion.

There is absolutely no justification for totally excluding the American people from this process or for this blatant failure to be transparent in how we conduct our business. I am devoted to the issue of civil rights and to the work of this Commission, but if we vote to approve this guidance today, how can we expect the American people to have confidence that this Agency operates openly and with full transparency. We are public servants. We work for the American people. What could possibly justify keeping them from knowing what is in this document before we approve it?

This particular proposed new Guidance, which, in reality, is a kind of regulation, has tremendous implications for Americans. It is exactly the type of policy shift that we should share with the American people; ask them to take a look; tell us what they think. Have we forgotten anything? Have we explained things well? Or is it confusing? And most importantly, how will this impact you? But we didn't do that. Instead, the document was rapidly brought to a vote without the American people ever having a chance to see what was in it. That is just plain wrong.

There are people in the Commission room today and throughout America who have considerable expertise in the subject the Guidance addresses, yet, we are about to give final approval to this draft without ever letting any of these experts, or the public-at-large, see a single word that it contains. And we are approving it without even bothering to submit it to OMB for their expert review. That begs the question, why? Why don't we want America to see what's in this document before we make it final? We should have spent months reviewing and discussing this with the public as we have other regulatory and sub-regulatory documents. Yes, the Commission did have a meeting on background checks and did hear from stakeholders on the general subject of the pros and cons of conducting criminal background searches; but seeking general input is a far cry from sharing what is actually in the actual proposed revised Guidance. As soon as our revised Guidance was drafted, the public was shut out.

Here is my second concern. It is my understanding that the Senate Appropriations Committee, Subcommittee on Commerce, Justice, and Science, the Committee that determines our funding year to year, under the direction of Chairman Senator Barbara Mikulski and Ranking Member Senator Kay Bailey Hutchison, in the report attached to the appropriations bill, specifically addressed their concerns about the haste with which this Commission was proposing to approve changes to the current criminal background checks Guidance and specifically instructed the Commission to: A, engage stakeholders in discussion about the intended changes to the Criminal Background Checks Guidance; and B, circulate any proposed changes to the Guidance for public input for at least six months before bringing it before the Commission for a vote.

When the Senate Appropriations Committee, the Committee that controls our funding, attaches to the bill that will determine our funding, specific instructions to hold off taking any action on this revised Guidance until we have circulated a copy to the public for input for at least six months, it seems to me, we should take that seriously. So why is this even on the agenda today? Are we seriously going to ignore this directive from the Senate Committee that decides our funding, especially when, and here's the irony, there is absolutely no need to take any action on this today or anytime in the immediate future. What is the big rush to approve this Guidance? What would justify ignoring a Senate Appropriations directive and ignoring our obligation to be transparent with the American people?

There have been no changes in Title VII, no new Supreme Court decisions that would compel a single change to our current guidance. In contrast, our Guidance on the Use of Arbitration Agreements in Employment Contracts has been out of date and a misstatement of the law since the first Supreme Court decision on that subject in 1991. As far as I know, there's no effort being made to circulate any revision of that guidance or bring it before the Commission for a vote.

Thirdly, I object to the Guidance because it so obviously exceeds our authority as a regulatory commission. We are an enforcement agency. We have the authority to issue, amend, or rescind federal procedural regulations. We have no authority to make substantive changes in the law by issuing guidance that goes beyond what is contained in the statues as interpreted by the courts. Our job is to follow Congressional intent and court interpretations; not make new law.

No matter how well intentioned we may be, no matter how much a change in the law may be warranted, we simply lack the authority to make those changes through the issuance of guidances. It is Congress' job, not ours, to weigh the pros and cons of proposed new legislation and approve or disapprove it. We are not Congress. We are not part of the Legislative Branch. And it is the job of the courts to interpret the laws that Congress passes. We are not the courts. We are not part of the Judicial Branch. Our job is to explain what is already the law, not to expand it.

No matter how much some of us may want Title VII to provide additional protections, we cannot use our authority to issue guidances to create new rights and protections that Title VII does not provide. If we think Title VII should be expanded we should make our concerns known to Congress, not take it upon ourselves to do Congress' job.

Finally, I oppose the Guidance because of the real impact it will have on America's business. Last night, I tried and read the Guidance as a business owner would read it. What I came up with over and over again was that, if I were a business owner, no matter what business I was in, I would never again conduct another criminal background check on a potential employee unless I'm required to under federal law, not just state law, but federal law. I understand all of the well-intentioned reasons for drafting the revised Guidance, but I question whether it will achieve what it attempts to achieve.

I'm afraid the reality is, the only real impact the new Guidance will have will be to scare business owners from ever conducting criminal background checks. Thus, the unintended consequence will be that, even those business owners who we all agree should conduct criminal background checks, simply will not. Why should they? The Guidance tells them that they are taking a tremendous risk if they do. The Guidance tells them that, even if they are not discriminating, if they are treating all races and ethnicities equally; they could be found guilty of unintentional discrimination under a disparate impact theory.

All this new Guidance does is to put business owners between a rock and a hard place. Conduct criminal background checks to protect your employees and the members of the public you serve, and you bear the risk of having to defend your actions as discriminatory. Don't conduct the background checks, and you take the risk that an employee or a member of the public will be harmed. This is no help to America's business owners. In summary, I object to the utter lack of transparency in the development of this Guidance. I object to the inexcusable way the public has been intentionally shut out of this process. I object to the unnecessary haste at which this document has been pushed through. And I object to the burden it places on business owners. I strongly oppose the Guidance and will vote against it. Thank you.

CHAIR BERRIEN: Thank you. Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you Madam Chair. I am very glad we'll have some time to toast our Colleague, Commissioner Ishimaru, at the end of our vote on this important Guidance. But with regard to the issue before us, I am very pleased to be able to vote for this well-crafted Guidance today. One of the things that I was struck by when I joined the Commission, just a bit over two years ago, was how intensively this Commission has been involved with the issue of criminal records exclusions in employment.

As Commissioner Barker correctly notes, Congress establishes the law. We, as an Agency, must then implement the law, which means, we must begin to understand what the law requires. And again, as she correctly noted, we did not begin in terms of doing that explication with regulations. In fact, the main area in which the Commission started to speak in this area was through the delivery of Commission decisions. We don't do very many of them anymore, the last one we did was about 10, 12 years ago, but in the '70s, there are books and books of Commission decisions. And those were decisions, when people brought us charges, we analyzed those charges to see if there was reasonable cause to believe that discrimination under Title VII had existed, and then we wrote up those decisions. So in the '70s, you have a number of Commission decisions explaining how an employer who says, "Oh, you've got a criminal record, I'm not hiring you." Even back in the '70s, there was significant disparity based on race. And so we, in implementing Title VII, said, well, that's a disparate impact. You've got to then, justify that by business necessity, so several Commission decisions on that.

Then, as you've heard, the landmark case of Green v. Missouri Pacific Railroad Company actually started in 1975 and I was pleased to see that the EEOC was an Amicus in that case, presenting our knowledge of what we had been seeing out there in the world in terms of impact of Title VII on these efforts.

In 1987, so the Green Court, that landmark case, it was a week for landmark cases, the Green case in 1977, because it was on remand, came back with these three factors that one should be looking at to get a more targeted criminal records exclusion.

Ten years after that, in 1987, the Commission issued its first formal policy statement in the area, noting the disparate impact based on race and national origin through the use of conviction records, so establishing the disparate impact, which then moved the burden over to employers to justify the use under business necessity. And then three years after that, in 1990, the Commission released Policy Guidance on the Use of Arrest Records.

But in 2007, so about 20 years after our 1987 guidance, the 3rd Circuit challenged us to revitalize our guidance in this area, right, that was in El v. Southeastern Pennsylvania Transportation Authority. It said, as Ms. Wilburn noted, it chastised us for not having sufficient legal analysis and factual background. Now I don't know if that's true, but the El case was actually one of the first cases I read when I came to the Commission because I had to immerse myself in this area, something I had not done in my other 25 years of employment Civil Rights Law; but I had to in order to vote on a subpoena determination. So I noted that from the El case. So I went to see, what was this terrible deficient guidance?

Well, it's short, okay? You've got just two pages on the conviction records and two pages on conviction records statistics. I think it's pretty solid, in terms of basic Title VII law. It's not expansive; it doesn't take you through every bit of the analysis; it doesn't give you lots of examples, and that's what the 3rd Circuit was saying is; you've told us your bottom-line view, EEOC, we'd like to see how you got there, sort of feel like what I say to students sometimes. "Yes, good point, but I got to see how you got there, okay?" What we are doing today is, we're telling the courts, we're telling employers, we're telling employees, how we got there. We are not making any huge changes in terms of what we're saying Title VII requires.

Well, in response to the El case, the Commission did respond, in fact, quite quickly for us. I see one year later, in November 2008, we held our first hearing to get testimony on the use of criminal records and employment. And then, again, under the leadership of Chair Berrien in July 2011, which was a hearing that all of us were at; we held another hearing on the issue. At both hearings, we gathered information about the use of criminal records in employment and analyzed the legal requirements of Title VII so we could write something that not only the 3rd Circuit, but every other Circuit could say: "Good job, now we understand why you're taking this position in your investigations, in your litigation. This is what's going to guide you in conciliations, good job, 'A' for EEOC."

Okay. So today, we're finally ready to vote on comprehensive updated Guidance with regards to Arrest and Conviction Records in Employment. Now I understand that this Guidance represents the culmination of work that goes way beyond the mere two years I have served on this Commission. Some of the people sitting here represent that many more years of work. But I would like to highlight the manner in which I personally have approached this issue during my time here because I think it goes directly to some of the concerns that Commissioner Barker raised in terms of engagement with the public.

After I had been on the Commission for, it was maybe six to nine months, I was approached by a very prominent civil rights lawyer, who is very active in this area of contesting the use of criminal records and credit records in hiring, asking to meet with me because he was frustrated about, well, why is this taking so long? You know, it's been nine months already, you know? So he wanted to come talk to me about why we needed to issue updated guidance in both the criminal records arena and the credit checks arena.

I explained to him that I understood this issue was a high priority for Chair Berrien, and therefore, I assumed the Commission was working on this and would be updating its guidance, but I offered to have him come meet with me, you know, to explain his concerns, and I suggested that he meet with me and Commissioner Lipnic at the same time. And I got the same reaction that I often get when I talk to civil rights lawyers and I tell them that, like, there's this look of, I don't know what. I don't know if it's fear, skepticism, are you talking about Commissioner Lipnic, your Republican Colleague? I mean, I wanted to come talk to you about it. And I was, like, yes, yes, that would be the Republican Colleague of mine, Commissioner Lipnic, and, you know, if you're telling me you don't want to do that, fine. I'm telling you, I think it'll be a better meeting if you meet with both of us because I will learn from the questions she asks you. And then I'll learn from how you respond to her. And she'll learn from the questions I ask. And it's just information exchange, all of this transparency piece is about getting good information exchange.

Well, you know, he went for it. We had the meeting. Like I said, this is probably about a year and some ago, and after that meeting, which I thought was just incredibly helpful, I think, for the both of us; I said to Commissioner Lipnic, you know, once we are given a draft of the updated Guidance; I recommend that we set aside time to meet together with the business groups that care about this and the civil rights groups that care about this; that before we vote on anything, I suggest we meet with these groups and I suggest we meet with them together, because again, I think we'll learn information from each other. And again, consistent with what Commissioner Barker said, I felt no need to have those meetings without -- before we had been given any guidance, proposed Guidance, because you can't ask the same targeted questions if you're just talking in the abstract. So that is precisely what we did.

As soon as a draft of updated Guidance was circulated to the Commission our staffs went into play, phone calls were made, we had several days of all meetings, all the time, you know, with civil rights groups, with business groups. We then had many, many more hours of meeting and talking with each other, both Commissioner Lipnic and I directly; our staffs talking to each other. So I do not believe it's true, at all, that the public was shut out of the conversation on this. I mean, there is the public, that is, when you issue guidance, and I would be interested, Legal Counsel, whether we have ever issued, for the public, any subregulatory guidance that we have written. Personally, I think that might be a good idea down the line, but I would be interested in knowing if we ever have done that in the past.

MS. MASTROIANNI: No, we have not. You're talking about issuing subregulatory guidance for notice and comment to the public?

COMMISSIONER FELDBLUM: Correct.

MS. MASTROIANNI: We have not done that.

COMMISSIONER FELDBLUM: Okay. I actually think there might be some utility to that in some cases, you know? But I had understood that we had not issued subregulatory guidance for notice and comment. That does not mean, though, that you can't still engage the representatives of people, representatives of the business community, representatives of the civil rights community, to come and have a meeting and, with very targeted questions now; start to tease out what the concerns people have.

I believe those meetings that Commissioner Lipnic and I had, and our sharing of perspectives, has helped create this stronger and coherent Guidance you have before you today. I know a lot of people are comfortable with partisan lines, I get that. But I think we need to push ourselves out of that comfort zone and force ourselves to do the hard process work that bipartisanship requires. And let me tell you, it is hard process work. But as I said when I voted on the Strategic Plan two months ago; Congress built bipartisanship into the sinews of this Agency, whether and how we implement that bipartisanship, that is up to us.

In terms of this Guidance, I believe it will do a tremendous amount of good for employers, employees, and applicants. It clearly sets forth the reasons why the use of arrest and criminal conviction records are problematic under Title VII and it clearly describes both disparate treatment and disparate impact liability. If you read no other page of the Guidance, I recommend you read Page 14. It will absolutely set out the clarity of this Guidance.

Okay. I see my time is running out so I'm going to end with a few more things. Number one, I assume that this Guidance will be posted on our Web site. For those of you who follow me on Twitter, @chaifeldblum, you'll get notice right away when it's available. But I want to end with just a few comments about justice. I mean, you heard the comments about statistics; they're striking. If incarceration rates continue at this pace, 1 in 17 White men will be in prison, 1 in 6 Hispanic men, and 1 in 3 African-American men. What sort of society is that?

Well, we as the EEOC, cannot do a lot with regard to a lot of the reasons that are causing that disparity. What we can do is make sure that the Civil Rights Law passed by Congress that said that neutral rules that have disparate impact must be job-related and consistent with business necessity. That's our job here as an Agency.

In one of the very first meetings that Commissioner Lipnic and I had with the civil rights group on this, we got this poster from the Fortune Group, Glenn Martin, who was at the meeting, who had spent time in prison, gave us this, these people have something in common, right, all types of different people. They have criminal records and you know what it says on the back? You thought prison was hard? Try finding a decent job once you get out.

There is only so much we can do as an Agency because we are chartered, mandated by Congress, to implement and enforce Title VII of the Civil Rights Act of '64. One thing we need to do is make clear, not that you can never use criminal record screens; but how you can use them in a way that will be job-related and consistent with business necessity. And I believe we have done that in this well-written, well-crafted, Guidance. And I think we will have done our job today when we vote for this Guidance. Thank you very much.

CHAIR BERRIEN: Thank you Commissioner. Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you Madam Chair. I also want to note that I'm glad that we will have the opportunity to say a few words about Commissioner Ishimaru's tenure here. I do want to note that, for the record, when he was referencing issues related to the matter before us today that, he referred to the technical, legal, term of "hoo-ha" that's gone on related to this, which is one of my favorite terms, and something, of course, we all live and die by in this town.

I actually did have a question for the panel, if I may, if you don't mind, ladies. And actually, Carol, my question to you, in talking about the employer's compliance with federal law, and federal law requirements that, you know, may dictate that you have to do a criminal background review before you can hire someone, and you had talked about, and I know our Guidance talks about this, that, I just want you to explain a little bit more if an employer goes beyond what those requirements of the federal law are, and sort of where that leaves them?

MS. MIASKOFF: Right. In the Guidance, we have a discussion and an example involving a situation where an employer goes beyond. And that example involves a bank and under some of the federal banking laws, there's a ten-year exclusion for people who have convictions for offenses involving dishonesty, fraud, et cetera, from working in a bank dealing with money. In our example, the situation is a bank that is rightly concerned about preserving the security of its deposits, et cetera, and it implements the ten-year exclusion, but in the interest of being really super safe; it decides to implement a 20-year exclusion, it doubles the federal exclusion. And it doubles it, really, not based on any, sort of, new information that shows that there's, you know, an increased risk of recidivism that it just discovered lasts for 20 years rather than ten years. It doesn't do it based on any change to the federal law or requirement. It does it, simply, because it's worried and a, sort of, amorphous kind of concern about safety. And the point of the example is that, stating a general worry about safety isn't enough to justify that extra ten years as job-related and consistent with business necessity.

COMMISSIONER LIPNIC: And do you know, do we have any real-life examples? Do we know of any situations beyond, you know, where people may be going beyond the actual requirements of federal law, you know, the bank example? The FDIC says, you know, ten years and that's it.

MS. MIASKOFF: Right. I don't personally, don't have any concrete examples for you.

COMMISSIONER LIPNIC: Okay. That was the one question I wanted to ask. Thank you.

Madam Chair, I am pleased to be able to vote for this proposed Guidance today, which revises our existing guidance on the use of criminal records in employment. I want to thank the Chair's Office in particular for working with the Offices of the Commissioners and all of the other Agency offices to develop a solid, well-reasoned Guidance document worthy of bipartisan support.

As I have said publicly with respect to this issue, we are not writing on a blank slate. Since 1987, the Commission has published guidance relating to employers' use of both arrest and conviction records. That guidance, generally, has worked well over the last 20-some years, and at the outset of this process; I made clear that my view was that wholesale revision of our criminal records guidance was unnecessary and not something I could support. What I can endorse, and do today, is an effort to update existing guidance in light of the technological developments and case law developments of the last two decades.

I believe that that is what this revised document under consideration this morning, does. The revised Guidance before us today builds on existing Commission policy, as others have noted. Most notably, the revised Guidance maintains the Green Factors as the touchstone of the job-related and business necessity inquiry. As practitioners in this area know, it has been the Commission's longstanding position that an employer should avoid blanket, one-size-fits-all, criminal record policies, and instead, adopt policies tailored to the specific workplace and job positions at hand.

Since 1987, our guidance has adopted the formulation established in the 8th Circuit's Green v. Missouri Pacific Railroad decision, which sets forth factors relevant in assessing whether a particular policy is job-related and consistent with business necessity. These factors include the gravity and severity of the crime, the nature of the job at issue, and how long ago a crime was committed. The Green Factors were, and remain, the central inquiry in examining criminal record use policies.

The revised Guidance provides a deeper explanation of these principles and offers examples of their factual application. As such, I believe that the revised Guidance will serve to provide greater clarity to employers and employees, while not imposing dramatically new requirements or changes in employer practices. I am likewise pleased that the revised Guidance does not adopt any bright-line rule limiting lawful criminal record policies to only a certain amount of time in the past or to a specified list of offenses. The Guidance properly rejects such an approach in favor of a fact-specific analysis of any given policy. I think that is a better choice.

The document before us is not exactly as I might have written it and there are a few items that I might have addressed slightly differently. For example, the revised Guidance recommends that, as a best practice, an employer use a criminal records policy to screen out applicants and employees, and should include in its policy, a provision for individualized assessment. In plain English, that means that, when using a criminal record to screen out a candidate, an employer should, where appropriate, provide the opportunity for an employee to address the issue before immediately being screened out. That may mean, for example, giving John Smith the opportunity to explain that the record of a past crime in the employer's hands is, in fact, an error. It's the record for the wrong John Smith, or it may mean giving an applicant the opportunity to explain why a disorderly bar fight arrest 20 years ago in college has no bearing on his ability to work on the plant floor today. I think, in many instances, this is a wise and prudent business practice. However, as explicitly recognized in the revised Guidance, it is important to make clear that Title VII does not require an employer to provide such an individualized assessment in any instance. This means that there can and will be times when particular criminal history will be so manifestly relevant to the position in question that an employer can lawfully screen out an applicant without further inquiry. A daycare center need not ask an applicant to explain a conviction of violence against a child, nor does a pharmacy have to bend over backward to justify why it excludes convicted drug dealers from working in the pharmacy lab. I had hoped that the final Guidance would have included an example of such lawful targeted practices. It does not, but I want to make clear for the record that, the lack of such examples should not be taken to mean that they do not exist.

Second, with respect to issues arising under state law, I had hoped our Guidance could have been clearer in providing real-world practical guidance to employers. As a legal matter, federal Title VII standards preempt conflicting state employment laws. That means, if, hypothetically, a state enacted a law tomorrow which said that no one who's ever had so much as a parking ticket can be allowed to work in any industry in the state; it is likely that, as a legal matter, such a law would run afoul of Title VII and be preempted.

As a practical matter however, this Guidance offers little advice to the hypothetical employer in that state who would be forced, in my example, to choose between obeying state or federal law. I would have hoped we could have been clearer on this point and provide more meaningful direction to employers facing this situation. More important however, I would hope that as a matter of enforcement in the field, and this Agency's exercise of its investigatory and prosecutorial discretion, that we will think long and hard before using scarce resources to pursue employer criminal records policies directly arising out of state law obligations.

Finally, throughout this process, many have asked that the Agency make public any proposed draft guidance and solicit comments on specific proposals. I think that such a request for greater transparency is valid and that, in general, any proposed guidance, regulatory or subregulatory, from this Agency or any other, benefits from the review and input of as broad a range of stakeholders as possible. Indeed that is what OMB's good guidance practices, adopted by the Bush administration, and I remember many, many days going over that guidance during the Bush administration, and maintained in the Obama administration, expect, with respect to significant guidance documents, such as the revised criminal Guidance before us today. In this instance, however, because I believe that the revised Guidance closely tracks our well-known and well-established policies; I am comfortable supporting the document without a full public notice and comment process.

I will note for the record, however, that there will be instances in which I do not think that we can or should go forward without such transparency and public participation and hope that, in those instances, we will conduct ourselves accordingly.

In closing, I again thank the Chair, my fellow Commissioners, all of their staffs, and their hard , for their very hard work, and cooperative work, on this revised Guidance. At every step of the way, from my many joint meetings with Commissioner Feldblum on this issue, with both the employer community and the civil rights advocates, I think that there has been a tremendous effort on the part of all offices involved to listen and understand the legal policy and practical implications of what we are doing today so as to allow us to make the best judgments on what are very difficult and complex issues.

From the time of our public meeting last fall to today, I fully recognize the consequences of our actions, both on a societal front and on an individual front. One of the things I have been struck by in immersing myself in this issue is how, in the 20 years, from the time of the Green case in 1987, to the time of the El case in 2007; how little has changed in terms of incarceration for minorities in this country. I take seriously that this Agency is about fulfilling equal employment opportunity, emphasis on opportunity. That may mean for some employers, a modestly increased burden in the hiring process which may, in the first instance, seem unwarranted; but it will also mean, I hope, that for many individuals who have paid their debt to society, who do not present an undue risk to a workplace; they will not be prematurely screened out from some employment opportunity. That is the policy choice I am willing to support today. Thank you Madam Chair.

CHAIR BERRIEN: Thank you Commissioner. Well I'd like to join my Colleagues in thanking the Office of Legal Counsel, particularly our Legal Counsel, Peggy Mastroianni, and Carol Miaskoff, and Tanisha Wilburn, who testified before us today. But this is such a small representation of many, many hours of work that I know you have spent in assisting the Commission in developing this Guidance, so thank you very much and thank you for your testimony.

I also want to acknowledge my staff members, Patrick Patterson and Awo Sarpong Ansu, for their work on this Guidance. And the work of my Commission colleagues and their staff members who, as you can tell from the discussion today, have all been working diligently to produce the Guidance that we've considered today and to make it better. Not only a better statement of the Commission's policy, but ultimately, we believe, a better assistance to this nation in understanding the laws that we enforce.

I'd also like to thank the men and women who testified at Commission meetings on this issue in 2008 and 2011, as well as the Agency stakeholders, advocacy organization representatives, business and trade groups, and many concerned individuals who have taken the time to attend Commission meetings on this subject, write to or meet with me and my Colleagues on the Commission, and generally exercised and taken full advantage of the opportunities available to share your views concerning this issue.

When we met in July 2011, the Commission meeting room in which we're gathered today, which has a full capacity of 200 people, was literally standing room only. And similarly today, as I look back, I don't see any empty seats. So there's no question that there is both great public interest, but again, as confirmed by the number of comments that we received during a public comment period following our July 2011 Commission meeting. We heard from more than 300 commenters representing individuals, and in some instances, multiple organizations.

I should note that that public comment period is a process that was instituted shortly after I became the Chair at the suggestion of several members of the Commission as an opportunity for the Commission to have more interaction with the public about topics and subjects that are addressed during public Commission meetings. And we have taken full advantage of it in this instance and will be continuing to take full advantage of it. It's been a very useful way for us to hear from interested people about the work of the Commission. So I want to thank all of those who have participated in that as well.

The proposed Guidance, as you've heard from many of my Colleagues, builds on longstanding court decisions and previous guidance documents that this Commission issued more than 20 years ago. In addition, as you've heard, there are many decisions of the EEOC that also address this topic and date back even more years ago. The proposed Guidance, as in the predecessor documents issued by this Commission, addresses the application of Title VII to employers use of information concerning arrest or conviction records. It does not ban criminal records checks of job applicants or employees, but, as the Commission has since 1987; it advises employers that under certain circumstances, their use of information they obtain concerning an applicant's or employee's arrest or conviction history, could violate Title VII. That is not a departure, either in law or in fact. The proposed Guidance also provides examples of best practices for employers.

In 1987, the Commission's policy statement on the issue of conviction records under Title VII and statement on the use of statistics and charges involving the exclusion of individuals with conviction records from employment; took a very similar approach to the approach that we have taken here. And similarly, in 1990, the Commission issued Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII. As you heard in much greater detail during the presentation today, the Guidance that we are considering today builds upon those documents, updates them, and clarifies them.

In addition to the Commission meeting we convened in July under my leadership, former Chair Naomi Earp conducted a Commission meeting on this issue in 2008, and at least two members of our Commission today participated in that meeting. And we have all had access to the transcript from that meeting. I have certainly availed myself of it as we have prepared for today's meeting. The Commission also examined this issue during a meeting on employment testing in 2007. In short, as we meet today, we have the benefit of a substantial history of Commission involvement in this area.

Our goal today, as it was when the Commission addressed this issue in 1987, and again in 1990, is to facilitate voluntary compliance with Title VII to the greatest extent possible and clearly inform internal and external stakeholders about the requirements of the laws we enforce. I would also note that the EEOC is not alone in our concern about this very important issue. As you've heard from some of my Colleagues, there's a diverse community of stakeholders engaged in work on this issue, including public and private employers, state and local governments, and many of our sister agencies throughout the federal government. And as you have also heard, it is an issue for which there have been leaders and spokespeople across party lines.

The EEOC is a member of the Cabinet-level Interagency Re-entry Council, which supports the federal government's efforts overall to advance public safety and well-being through enhanced communication, coordination, and collaboration across federal agencies. Participating agencies include some of the largest departments of government, including the Department of Justice, Veterans Affairs, Interior, Agriculture, Labor, Health and Human Services, Education, and Housing and Urban Development, as well as the Office of Personnel Management, among others.

When the Commission met publicly to discuss this subject last July, I said that I hope the meeting would help to inform the Commission's consideration of revisions to existing EEOC guidance. Since that time, through the information we received in that meeting, the information that we have received in the aftermath of that meeting, whether it has come in written form or through meetings. I and my Colleagues on the Commission have worked diligently and thought carefully about the document that is before us today.

The record before this Commission includes excellent testimony from two public meetings, the hundreds of written comments submitted by a diverse group of commenters, some of which have come as recently as yesterday. All of this information, together with the information we received in letters and meetings with stakeholders, have all helped to inform our deliberations concerning the new Guidance.

The new Guidance clarifies and updates the EEOC's longstanding policy concerning the use of arrest and conviction records in employment. I believe that it will assist job seekers, employees, employers, and many other Agency stakeholders. Therefore, I will be pleased to vote in favor of the Guidance. That'll bring our discussion to a close. Are there any motions?

COMMISSIONER ISHIMARU: Madam Chair, I will move in a second to move the previous question that we adopt the guidance, but before I do, I forgot one thank you, and that's to Bernadette Wilson, who's our Acting Executive Officer. And I must say that, in the past few weeks, there's been a lot of paper flowing at the Commission, and part of this is trying to make sure that people get things on time, and to keep things straight, and Bernadette Wilson, as our Acting Executive Officer, has done an outstanding job. And I wanted to thank her, my last chance, publicly, to do that. But it's been a real treat working with her over many years now and I will miss her very much.

But thank you for that, and I move the previous question that we adopt the Enforcement Guidance on Arrests and Conviction Records.

COMMISSIONER FELDBLUM: And I second that motion.

CHAIR BERRIEN: Any discussion? Hearing none, all those in favor?

(Multiple Ayes)

CHAIR BERRIEN: Opposed?

COMMISSIONER BARKER: No.

CHAIR BERRIEN: The vote is four in favor; one opposed, the motion carries. Thank you.

As I mentioned at the outset of the meeting, this is Commissioner Ishimaru's last meeting or last opportunity to participate at a public meeting of the Commission, at least on this side, I suppose. There's always a possibility. And on this occasion, we'll depart from our Commission tradition. I'm sorry; I should excuse Carol and Tanisha from the witness, unless, of course, you'd like to join?

COMMISSIONER Lipnic: Well, they might want to say a few things too.

COMMISSIONER FELDBLUM: Madam Chair, if I could have the ability to just say one other thank you before we move into this. You know, I'm sure you've noticed that I tend to, you know, write some things, but then I get into whatever I'm saying, and suddenly the thank yous I had at the end just disappear. And I know my staff understands that, but just to correct that; I just want to say that Steve Zanowic, who is sitting here behind me, has been doing this issue for me from day one, will continue to be doing this issue in terms of credit checks when we, you know, get to that guidance. Sharon Masling, my Chief of Staff, just sort of keeps everything going, and Pierce Blue, who is in the audience, you know, when this became an all-hands-on-deck issue, jumped in and was just incredible, so I just want to say thank you to those folks and thank you for your indulgence, Madam Chair, on that.

CHAIR BERRIEN: Of course. So on this occasion, we're going to depart from Commission tradition and ask our longest tenured member to reserve his comments for last.

COMMISSIONER ISHIMARU: I was hoping so, so I'd get the last word.

CHAIR BERRIEN: That's the least I could do in your last meeting. So I'd like to invite the members of the Commission, and General Counsel Lopez, to join me in doing remarks. And I know, Commissioner Barker, you are on the phone, if you would like to get us started.

COMMISSIONER BARKER: Madam Chair, I missed your last few comments, were you inviting me to make comments about Stuart?

CHAIR BERRIEN: Yes I am.

COMMISSIONER BARKER: Great. Stuart, you know, I guess I'm in the odd position of being the Commissioner who has worked with you the longest, and as you and I have previously and privately discussed; I'm very saddened that you are leaving us. I have thoroughly enjoyed working with you for the past four years. You and I, you know, we come from very different viewpoints on a number of the ways that the Commission approaches its work, but we are both totally committed to the work of the Commission and to the work of civil rights. And I think you and I have been particularly of one mind in our concern for the whole issue of human trafficking, and particularly, for sexual violence against immigrant women, particularly young Latina females. So I'd like to just commend you for all of the work that you've done at the Commission during my four years with you and with, you know, your prior years with the Commission. You have been a voice that is very different from the other Commissioners, which, I think, is what this Commission should be all about. And again, while you and I have not always agreed, I have always listened to you and I have always felt that you have listened to me. And I think that we have shared a professional relationship of strong, mutual, professional respect. And again, I commend all the work that you've done and I know that you will make a tremendous commitment where you're heading. And I certainly wish you the best in your future endeavors. I'll miss you, Stuart. Thank you Madam Chair.

CHAIR BERRIEN: Thank you Commissioner. Commissioner Feldblum?

COMMISSIONER FELDBLUM: Thank you Madam Chair. So one of the things that I noted to the Chair's staff was that, before I was going to get, for what I call for the fun part; I was going to make a comment about the Reasonable Accommodation Guidance that had been initially on this agenda. So I'm sorry that I saw some of the folks from the business community leave. If I could just get, by a show of hands, people representing the business community, or the disability community, that are still in the audience? Good, thank you. I hope you convey the comments I'm about to make to your colleagues that have left. I would like to acknowledge the really remarkable and hard work that our staff has done over the past several months to update our Guidance on Reasonable Accommodation and Undue Hardship. This includes the staff, the really incredibly hard working staff from the Office of Legal Counsel. I kid you not, about halfway through this process, Sharon Masling and I said, we should send flowers to Peggy, and I did. I mean, I went over to Harris Teeter, and I bought flowers, and I brought them over.

Okay. The staff from our Office of Legal Counsel, the staff of the Chair and of the Commissioners on this dais here, and my staff, Sharon Masling and Pierce Blue, who I'm thrilled are still working for me after the past six weeks. The reality, however, is that, although we have been working hard to develop guidance in time for today's meeting; I think many of us recognize that additional time will allow the full Commission to engage with these important questions and to develop the most effective, the most credible, the most workable guidance, because that is what people with disabilities in this country deserve, and that's what employers in this country deserve.

So let me be clear, having this Agency issue clear and updated guidance in the area of reasonable accommodation and undue hardship is critical, particularly now that employers are focusing, again, on the ADA, even though it's been there for 20 years, 23 now, I know, it's hard to think it's getting -- yeah, but anyway, focusing again on the ADA, in light of the ADA Amendments Act of 2008; we must continue the essential work of updating our Guidance on Reasonable Accommodation and Undue Hardship.

So I look forward to continuing to hear perspectives on the issues that arise for employers who are trying, in good faith, to comply with the ADA and to hearing about the issues that are arising for those representing employees and applicants who are seeking to have their rights vindicated under the ADA. And I am very pleased that completing this Guidance in a timely fashion will continue to be a priority of this Commission under the leadership of Chair Berrien, and I look forward to working with all my Colleagues, and all stakeholders on that effort.

So now for the fun part. So I'd like to note my deep appreciation for the service that our Colleague, Commissioner Stuart Ishimaru, has given to this Agency, and indeed, to the great cause of civil rights in this country. I have the deepest respect for his commitment to equality, to justice, and to the men and women of this Agency.

Now I've also learned from him over the years, and that's a lot of years. I almost, when he referenced John Payton, that he met in the '80s, I almost right then, pulled out this picture.

COMMISSIONER ISHIMARU: Oh-no, oh no!

COMMISSIONER FELDBLUM: Now, I don't know if our great camera people can zoom in on this, but, I have shown this picture to various people and they're like, okay, I think that's you and who's that guy next to you? Okay, so that's Stuart Ishimaru and anyone -- oh, look at that. We're getting a little bit more of a close-up. Thank you. So there you go Stuart. Yes, a little more hair, a little blacker hair.

COMMISSIONER ISHIMARU: 20 pounds less.

COMMISSIONER FELDBLUM: But this was a picture of Stuart and his other members of the judiciary committee, and me, at some point during the work on either the Fair Housing Amendments Act, which was the first bill that I worked on with Stuart when I was at the ACLU AIDS Project, and he was at the House Judiciary Committee, and then afterwards, working with him on the ADA. Stuart leaned over to me earlier, after a little quip, and I laughed and he says, you're going to miss me more than you know.

And I remember how, in the Fair Housing Amendments Act process, we had gotten a dear colleague from the Republican side that we didn't think was exactly appropriate, but was going to be problematic; and I showed up at Stuart's office that morning and he handed me out a proposed response dear colleague that I will not share with you, some of the words, because it just wouldn't be appropriate; but it was very funny and I framed it. So if you want to see it, it is in my office.

So I go way back in terms of Stuart, in terms of the ADA times. I also then, interacted with Stuart when this Agency issued its caregiving guidance under Title VII. Again, back to the point of, yes, Congress passes the law, okay? Article I of the Constitution, Congress passes the law, but before you get to Article III, where the courts are interpreting the law; you've got Article II. Article II of the Constitution is that the Executive shall faithfully execute the law, and the way the Executive does that is by having agencies that might adjudicate, might issue regulations, might issue sub-regulatory guidance; that's what our job is under the Constitution.

And under Commissioner Ishimaru's guidance, and Commissioner Silverman's guidance at the time; the Commission put out some really excellent guidance on, what was discrimination based on caregiving under Title VII? At that point, to your comment, Madam Chair, about whether we'll see him on the other side, during that caregiving period, I was actually invited to testify and then dis-invited, which was an interesting experience. Okay.

And then finally, when I came on the Commission, obviously, Stuart was the person that I went to to get ideas, advice, lay of the land, and when I told him that I was planning to do, that one of the ways that I felt I could get a sense of the full Commission, the 53 field offices of our Commission, where people, when they feel they've been discriminated against, can walk in the door and say, "I was treated unfairly at work." You know, have an investigator tell them, well, we'll tell you whether that unfairness is something we adjudicate versus something we don't; but if it's something we investigate, and potentially bring a suit on, you've got a door open here. So I thought the best way to get a sense of that was to literally get in the car and drive across the country, and visit EEOC offices, so I did that. I went to about eight of them. I was talking to Stuart, getting some sense, and I said to him, "Oh, you know what would be a great idea? Why don't I meet with the gay employee group and the employee group of people with disabilities in each office?" And he literally laughed. He says, "What makes you think we have a gay employee group here?" And I'm like, we don't? And we didn't. I mean, other federal agencies have had them for years. We didn't. We do now, you know? We still don't have a group and there's not a good group across the federal government of employees with disabilities. So every time we think that we're at a place, you know, we've achieved, there is so much more to achieve. And even though Stuart sometimes delivers it to me with a cynical laugh, about how much more there is to achieve; he knows what needs to happen.

So, my last thing here is, though, I do want to say to everybody, while his seat will be impossible to fill in the full Stuart-ness of the seat; I do not expect his seat to be empty for very long. I might, I think, get to move to that seat, so it'll be this seat, but as we all know, the Senate confirmed our Colleague, Commissioner Constance Barker, last fall to a new five-year term. There were no shenanigans. There were no games. In that case, President Obama acted in a timely fashion in naming Commissioner Barker to another term. The Senate gave her due consideration in a timely fashion, and the Senate confirmed her. I have every reason to believe, to expect, that President Obama will act in a similar timely fashion in naming a new Commissioner; that the Senate will similarly give that nominee due consideration in a timely fashion; and that we will, in short order, be continuing at our full strength in short order. Again, as I think you've seen here today, the fact that we will not have a third Democratic Commissioner does not mean the work of this Agency stops. Bipartisanship is built into the sinews of our Agency. How we implement that is up to us.

Like I said, of course, there's no way that every nominee could ever be quite like Commissioner Ishimaru, and so to you I say, thank you for what you have taught me, thank you, even though we(ve always pretty much agreed on substance, but not always on tactics; but I have learned from you, and I look forward to seeing the additional wonderful things that you will do for civil rights and diversity in the future. Thank you.

COMMISSIONER ISHIMARU: Thank you.

CHAIR BERRIEN: Thank you. Commissioner Lipnic?

COMMISSIONER LIPNIC: Thank you Madam Chair. I want to congratulate Commissioner Ishimaru on his long service at the EEOC. He told me that this is the longest period of time he's ever held a job. So we know that his mother and his family are undoubtedly grateful for that. When my nomination was first announced to come and serve as a Commissioner here at the EEOC, which was at the end of 2009; the very first person to call me and offer his congratulations was Commissioner Ishimaru, and he could not have been more gracious and warm and welcoming.

The second person to call me was my friend and former Vice Chair, Leslie Silverman, who said to me, with the greatest amount of respect from her years of serving with Commissioner Ishimaru during the Bush administration: (Look pal, you'd better be ready for it because Stuart is tenacious on every issue.( And I have to say, both of those qualities, gracious and tenacious, have certainly proven to be true. He is a tireless advocate for civil rights. He takes on his causes with tremendous passion. And he does exactly what I tell my staff we have to do on everything, which is, he plays every minute of the game. And I have to tell you, I love that.

When I was walking out of the building one night last week, it was very late, I actually ran into Joi Chaney in the Chair's Office, and, you know, everyone had been working very hard on the many things going on over the last couple of weeks, and Joi said to me, somewhat jokingly, (Well, you know, what are you doing here so late?( And I said, (Well, we have all these things going, of course.( And she said, (You know, it would be so much easier if you would just agree with us on everything.( And I said, (Now Joi, what fun would that be?( And that is certainly the experience that I have had with Commissioner Ishimaru, but both what fun would that be, but also, as Commissioner Feldblum said, and Commissioner Barker, how much we have been able to learn from each other. And I think that we all recognize that we are all trying to do the best we can and bring our own perspectives to the best way this Commission can operate and how to, in particular, advance employment opportunities for the workforce.

Almost two years ago, literally, the week before I came to the Commission, I attended a dinner in Washington, D.C. of the young lawyers' chapter of the Asian-Pacific American Legal Foundation. My law firm was co-sponsoring the dinner and I attended with one of the young associates from the firm. She had grown up in Hawaii, her family was of Japanese descent, she had come to Washington to go to undergrad and to Law School at Georgetown, Commissioner Feldblum, and most of all; she was so excited because Commissioner Ishimaru was the keynote speaker. And he told, that night, the fascinating story of a young man who had come to Washington to go to law school from California, of how very different it was for someone of Asian descent to be away from the West Coast, something that I had never really thought of before, and of how different the East Coast can feel. He also talked about how there is so much opportunity to do good in your legal career, and in particular, how much opportunity there is in Washington if you are open to it. I have to tell you, that night, these young lawyers were in rapt attention. He was, and is to this day, an inspiration. Somewhere in that audience, the next Commissioner Ishimaru will be sitting on this Commission and they all can only hope to have the kind of great career in public service that he has had and will continue to have. Stuart, congratulations on a job well done.

CHAIR BERRIEN: And I'd like to ask General Counsel Lopez to join us in remarks.

COMMISSIONER ISHIMARU: Point of order, Madam Chair.

CHAIR BERRIEN: Overruled.

MR. LOPEZ: Does this work for me? It does now. First of all, let me congratulate the Commission for all the hard work done on the Policy Guidance. It was absolutely very awe-inspiring for me to bear witness to the amount of diligence and conscientiousness that all the members have devoted to the project. And I think that you should all be proud. Stuart, let me start out by thanking you for your service to the Agency and thanking you for your service to this country. You have always been extremely passionate about the work that we do and the patriotic basis for anti-discrimination law that's always been very helpful to me.

I know that part of your public persona is being gruff, being somewhat of a gadfly, but I want to, sort of, take this moment to -- and the private persona. We won't go into the shoe, but I will, sort of, take this moment to do a public expose as to your generosity and your graciousness. I met you first, probably over 20 years ago, when we were both at the Department of Justice and you came in with Deval Patrick and his very dynamic team. And what was very notable to the career staff at that time is just how curious you were and how engaged you were in the work of the division, and how passionate you were, and that's something that we noted. All of the career staff noted that. I think I faded out for 12 years and I was out in the desert, but I would see you periodically as you came by in your role as a Commissioner. And again, I recall you coming to the Phoenix District Office and us taking you to Los Compadres, one of the finest Mexican hole-in-the-wall restaurants in Phoenix. And again, you know, your engagement, your empathetic engagement with the staff, your, really, ability to listen to what the concerns are, and your support for the program, and your support for the enforcement effort in the field, and for all the workers in the field and all the employees in the field who have dedicated their careers to public service, that means a lot. And I remember our discussions. I remember that you were very conscientious about wanting to make sure that you reached out to the non-management staff, that you spent time with them, that you listened to them, and again; I think it was noted in the field, and admired in the field. You were the rock star coming to town. I re-engaged again when I was nominated to be General Counsel, and you helped shepherd me through that process. Your counsel, your guidance, was absolutely critical to me in terms of my, you know, my peace of mind, to my moving back to the East Coast from the West Coast because it is a big jump. And you know, I truly, truly appreciate everything that you did for me as part of the process.

And then finally, you know, I've been very fortunate to work with you as a Colleague, and I know that you've been tremendously supportive of the enforcement efforts and litigation efforts when necessary. And again, you know, you provided your support to the program, you provided your support to the lawyers in our program, but you also provided me friendship. And I know that we've had many conversations as we are navigating our way through the teenage years. We've had those conversations. And I remember very specifically when my 13-year-old son came to visit, and I was walking him around, and, kind of, showing him the different sites, and I walked him into your office, and it was very impressive to me just how respectful you were of him, and how engaged you were with him. And I seem to recall that I left him there with you for about 30 minutes, and he came by, and, you know, you can always take a measure of a person by how children react, and he's, like, (Yeah, daddy, that guy with the ponytail, he's really cool, he's really nice.( So, you know, I just want to thank you. There's a Spanish word, "Carino," which means, roughly, you know, affection. And, you know, that is, I think, an apt word to describe what I'm feeling right now, and my appreciation for all the work that you've done for the Agency and you will be incredibly missed.

CHAIR BERRIEN: My mother used to say, (Give me my flowers while I'm here.( And I've never regretted following that advice with her and one of the things that, to loop back to your mention earlier of John Payton, one of the things that was certainly a reminder of is, how important it is, while there were many, many tributes to his life and career, rightly so; it is so important that that's not the only time that one is appropriately saluted. And so I thought it was important, however full our agenda was today, that we take this opportunity to let you know how much your service has meant to us, how much your service, most of all, has meant to the nation. The people of the United States have benefitted from your service. All of your Colleagues here have benefitted from your service. I note that Leslie Silverman is in the audience today and I appreciate her presence as well, and know that you have heard from many who you served with before on the Commission about how significant your time with the Commission has been.

I think the thing I'd like to emphasize is that, when I arrived at the Commission, just a little more than two years ago; I'm sure that the first person who greeted me, and certainly, the person who spent the most time to welcome me, to usher me in, and to do everything possible to ensure that I could hit the ground running, and to ensure that I would be in the best possible position to assume the responsibility that I have now, was you. And that was gracious; that was generous. I think we've heard those words used before about you and I know that it was certainly my experience, it was certainly the case for me, and I will be forever grateful to you, on a personal level, for that. And I would just like to turn to, and share with everyone, and for the record, the message that I sent to the Agency concerning the news that you'd be resigning. "Dear Colleagues, as you know, Commissioner Stuart Ishimaru has announced that he will be leaving the Commission. I know that I express the sentiments of many within and outside the EEOC in thanking Commissioner Ishimaru for his outstanding service to this Agency and to the nation. His accomplishments as a member of the Commission and Acting Chairman, as well as his work as an advocate in public service before coming to the Commission; have been exceptional and advanced many areas of civil rights, including employment discrimination law. (During his, your, tenure with the Commission, you advocated for rigorous enforcement of federal equal employment laws in public and private sector workplaces, and worked in numerous ways to improve this Agency's outreach and service to underserved communities. You were also a leader in the Commission's work on caregiver discrimination, human trafficking, and many other issues. You have been a tremendous Colleague and we will miss your fervent commitment to civil rights law enforcement and myriad contributions to the work of the Commission."

And I have asked our staff, and now I'll ask everyone here today, please join me in saluting Commissioner Ishimaru's distinguished service to the EEOC and wishing him success in his future endeavors. Applause, Applause, Applause!

COMMISSIONER ISHIMARU: Well, as my friend, Commissioner Lipnic pointed out, this is the longest time that I've ever held a job. It is nice to get flowers before it's too late. One time, in one of my infamous jobs, a Federal District Judge ordered me out of my seat, and there was no party then, although there may have been across town. But this is awfully gracious, and you know, one of the things that, after having been around in town for a long time now, is, you know, you get to work with terrific people. And even though there have been ups and downs, and even though the atmosphere sometimes changes; the one thing that I've truly appreciated at this Agency, and one thing that I did not realize until I got here and have spent now eight and a half years doing, is the bipartisan nature of the Agency. When I first came here, I knew not that much about the EEOC, and who was here, and what we did. Leslie told me when I arrived that she would teach me, and she taught me an awful lot. But there's a definite benefit, whether you're in the majority or if you're in the minority, of having a diversity of views here. And I think, I hope, we've benefitted from that over the years. In the various offices that I've actually been in, physically, over the years, it's been a truly a learning experience. I remember once when my friend Chair Dominguez once turned to me after I was being a pain in her side and said, (You have no idea, you have no idea what it's like to be the Chair.( And I said, (Well, yeah, you know, I realize that, but I'm still going to be the gadfly that will ask the questions,( and, you know, we moved on from that. But I must say that, in the time that I was the Acting Chair, it was a fascinating experience. It was a high honor and I did learn that I really did not know what it was like to be the Chair and how hard it is and all the balls you have to juggle. So to you, Madam Chair, I salute your leadership and your juggling of the balls. I know how hard that is. This has been an amazing journey for me. To work on all these various issues, to do it in a bipartisan fashion, not that we always agreed, quite often we did not, quite often my favorite book here was Robert's Rules of Order, which I used. I took the admonition from Commissioner Silverman, Vice Chair Silverman, (Seriously though, don't make us look like fools, don't make us look like some other Commission in town, make us proud.( And I hope that I've done that to a certain degree.

You know, a lot of people have worked for me over the years and I just wanted to use this opportunity to thank those people, people who came to me on detail from their work here. I think they're all still here: Rachel Decter, Megumi Fujita, Julie Gantz, and Daniel Vail, Mona Papillon came to work for me as well, both as a Commissioner and when we were in the Acting Chair's Office, as did Daniel. Dick Roscio, who he and I had many a fight over the years, but Dick was a terrific Deputy Chief Operating Officer during my time in the Acting Chair's Office; Dick, now retired, looks great, relaxed, really a lesson for us all, Janice Swiney, when I was in the Acting Chair's Office, and of course, Mr. Price, who was just terrific. My kids continually ask about Mr. Price and when they say, you're really leaving the EEOC? What's going to happen to Mr. Price? I said, well, Mr. Price is still there and he's doing great. And they think he's really the heart, and he is, of the EEOC.

And for all those people that I've hired over the years to actually work in my office on a permanent basis, how you could snag such incredible talent to come to work for you. One thing that I learned working on Capitol Hill for so many years, and working at the Department of Justice before here is that the people sitting in these seats sometimes read the talking points, hopefully, will stay on track, will not say the wrong thing, will answer the right question, but really; it's the staff that makes it happen, the staff who writes the Committee reports that we worked on late into the night many a year back on Capitol Hill, the underlying work here at the Commission. How much the principal involved actually does the work and how the staff really makes it happen. And for the staff who's worked for me on a permanent basis, Sharyn Tejani, Jacinta Ma, Sharon Alexander, and now, Cathy Ventrell-Monsees, Melissa Fenwick, and Antoinette Eates, who started with me on my very first day. I got her from my friend Paul Miller, who, Miller called and said, well, if you're going to be confirmed, you need someone here. And Antoinette and I have been together since day one and will be here to the very end. And she has taught me many a lesson, including how good the people are here, which is what I learned. We have a sort of, a running joke that everyone in Antoinette's eyes is a good person, although, if you're not a good person in Antoinette's eyes; you're really not a good person. There's no fury like Antoinette's scorn, but indeed, the one thing that I truly learned here is how good the people are, both here in Headquarters and around the country. I know one of my first trips as a Commissioner was going out to visit in Phoenix and seeing David again, and meeting his colleagues out there, and really, sort of a model for what an office should be like, the work they do, the passion that people have, and the opportunities that people have passed up to do this work in our offices around the country is truly amazing.

The one thing that I learned in the Chair's Office, though, is that it is an incredibly hard thing to do to make it all happen all at once. As much as I wanted certain things to happen, as I learned, you need to keep all these balls in the air. You need to keep the Agency moving forward. If you did one thing, something else would pop out and it would come from the top and hit you from the bottom. And it's incredibly hard work, and to the people who helped make this place run on a day-to-day basis, my thanks to you. We didn't always agree, sometimes it wasn't pleasant, but at the end of the day; you have my utmost respect and my best wishes for the future.

My Colleagues on the Commission, as Members of the Commission and General Counsels who I've served with, I saw, last week, my friend Cari Dominguez, who led us for many years. Cari was my first Chair. I remember the first time that I met her, and I sat in her office, and we had a lovely chat. We continue to have lovely chats to this day, a tremendous leader. Our friend, the late Paul Miller, who served here as, I think he said, right, the longest serving Commissioner. One of the headlines when I was leaving, it said, the longest serving EEOC Commissioner. And I thought, Miller is probably turning in his grave knowing that that is not true. But Paul Miller was an incredible Colleague here for a short period of time, and his length of service is remembered and missed. My friend, Leslie Silverman, who I sat for many a years on the Commission with, she's ably served as both a Commissioner and as our Vice Chair for a number of years. The things we worked on together, especially, the caregiver guidance, and even more importantly I think, was the systemic work that your task force put forward and how that really serves as a basis for the work we do. And when people come up to me now and they say, "Ah, the EEOC's doing too much systemic work." And I say, well, this is nothing new. This is the Silverman stuff, this is the Silverman report. This is why we're doing it because there was bipartisan agreement that we should not lose sight of our work to deal with systemic discrimination. And Leslie's work was the catalyst to make that happen to this day and I salute you for that, because it's really tremendous, and I was privileged to work on that.

Naomi Earp, our former Chair, whose leadership and our shared interest in dealing with race discrimination cases led, I hope, to improvements in various parts of the country, especially in the South, to try to make our enforcement work better. My friend, Christine Griffin, who served for a number of years with me. Christine and I -- I was looking at a tape the other day from a past meeting and Christine would look at me sort of funny when we would pull procedural shenanigans sometimes to try to get the Chair's attention. And Christine was a great Colleague and a fierce advocate for people with disabilities but all people in this country. And her passion and her fun is truly missed, and I know she's doing gangbusters up in Massachusetts.

To my Colleagues on the Commission, it's really been a treat. I had heard about Vicki Lipnic for years and finally got a chance to meet her as she was coming over here, a true consummate professional and sharing, I think, a love of how the institution works and how, done right, government can be a good thing, and a good help. And we differ on some issues, but we agree on a lot of things. My friend Connie Barker, from Alabama, it's just been a total treat to work with her. We don't always agree. We don't always agree, but we do it, hopefully, in a thoughtful way, and I know there are good things ahead from her, especially in the small business front. My old friend, Chai Feldblum, I can't believe you have that picture. It's been a long time and many hair ago. Most of it, all the dark ones, have gone, but so be it.

And to Jackie Berrien, as our Chair, you've done a great job in leading us, and it's been an honor to work with you, and especially on this Criminal Conviction Guidance, something that we've been trying to get out for many a year now.

I see my friends Charlie and Pauline Sullivan in the audience, who I first met in the '80s, when they had come to Washington to work with a group called CURE, Citizens United to Cure Errants, and trying to get a modicum of protections for people who have served their time in the criminal justice system, and how do you get people back into the mainstream? And I think this Guidance today is a salute to that hard work over many a year.

Let me talk, just for a minute, about my legal friends. David, your gracious words are very kind. I must say that, over the years, I think I was the Commissioner, probably, with the best voting average for litigation requests, no matter who was in charge. Under my friend Eric Dreiband and Ron Cooper's leadership at the Office of General Counsel, I would vote for virtually anything that came up, not without, not blindly, of course; but I'm a great fan of the litigators here. I know, by the time it reaches that stage, it's a serious matter. And I am hopeful that, in the years ahead, we will be able to choose carefully and choose well, and to spread our reach to many parts of the country where we haven't been; to touch on groups who we haven't had much reach, but there's so much work ahead. And I'm hopeful that the work of the Commission through the development of the strategic plan, through the choices we'll make in the future, the choices you'll make in the future; will let us reach a potential that is yet untapped, that there is so much more to do.

But to my Colleagues and friends here at the Agency, my thanks to you. This is, you know, frankly, the first time I've had something like this because usually I'm run out of town, literally, so I'm truly touched. And I want to thank everyone for their kindness over many a year, of putting up with me, of putting up with my crazy thoughts. Sometimes I need to be reeled back in, as you may know. So it is good that, I'm truly appreciative. Okay, am I missing anything? No?

ANTOINETTE EATES: I'm just glad you didn't mention strip clubs.

COMMISSIONER ISHIMARU: I will not mention strip clubs, but in closing, let me say that it has been an amazing journey. I am appreciative of the opportunity to have served. I want to thank President Bush for nominating me twice to this job. Never in my life did I think that I would have an opportunity to be nominated by President Bush, twice, nor to be able to serve during his time and during the time of President Obama. And I want to thank the President for designating me to be the Acting Chair as we were awaiting your arrival. It was the highest honor, and I am truly appreciative. And I thank you, Madam Chair.

CHAIR BERRIEN: I was a keynote speaker at a career day at my high school last week; they were about to go to the prom that weekend and I did warn them that the pictures would follow them for many years, so we have an object lesson today. On that note, I just want to thank everyone again for being here and participating in this meeting. I believe there's no further business in open session. I'll entertain a motion.

COMMISSIONER ISHIMARU: I move we adjourn, or no, we go to closed session, right?

CHAIR BERRIEN: Correct. We'll adjourn our open session and proceed to closed session, and I will turn to Bernadette Wilson.

MS. WILSON: This concludes the open portion of today's meeting. We ask that the room be cleared for the closed session. Only persons previously approved for attendance at the closed session are permitted to remain in the room. Thank you.

(Whereupon, the meeting in the above-entitled matter was concluded at 11:38 a.m.)