Statement of William R. Tamayo, Regional Attorney San Francisco District Office

The U.S. Equal Employment Opportunity Commission

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Meeting of February 28, 2007, Washington D.C. to Launch E-Race Initiative

Thank you, Madam Chair and Commissioners, for inviting me to participate at this important hearing on discrimination. I’m honored to be testifying with one of our brave charging parties, Mr. Beejay Enriquez. I appreciate this opportunity to share some views on the complexity of race and national origin discrimination today.

Two years before the tragedy of 9/11, I invited Fred Korematsu to speak at EEOC’s Asian Pacific Heritage Celebration. I asked Fred to talk about his challenge to the internment of Japanese Americans during World War II and his quest to set aside his conviction for having refused to report for internment. Fred told us that he was born in Oakland, California in 1919, and at the age of 23, having served as a welder for an East Bay company for four years, was called into the manager’s office, a few weeks after the attack on Pearl Harbor. Fred asked the manager why he was being called in. The manager explained that because of the attack on Pearl Harbor he would have to fire Fred because it “just wouldn’t look right” to have a Japanese-American working for the company. Fred stated he had been a good employee for four years, and that his work was never criticized. He also stated that he opposed the attack on Pearl Harbor like all Americans and that he was a loyal American citizen. Nevertheless, the manager said, “Sorry Fred. I know you’re a good man and good worker, but I have to let you go.” Fred told us that story he said because “at least now there are laws against that discrimination and there’s an EEOC that would fight for my (his) rights.”

Persons of Asian descent constitute over 50% of the world’s population, yet they are only 4% of the United States population – a statistical disparity created by clear, racial intent. Our nation’s early immigration laws explicitly barred persons of Asian descent from entering, the alien land laws prohibited them from owning land, and Congress prohibited Asians from naturalizing.¹ We can’t forget that the Chinese Exclusion Act of 1882, supported by Samuel Gompers of the American Federation of Labor and white unions, was extended indefinitely after the Statue of Liberty was dedicated in 1886 to welcome western European immigrants. Or, as University of California, Davis law professor Bill Hing bluntly says, “It’s no accident that the Statue of Liberty faces Europe and has her back to Asia and Latin America.” Ironically, Lady Liberty, with broken shackles at her feet, was a gift from France to the United States for ending the Civil War and slavery. Yet racism continued to drive immigration policy.²

Not until the civil rights movement and the passage of the 1964 Civil Rights Act and the 1965 Immigration Act, which lifted the dreaded national origins quotas, did Asians begin to immigrate in meaningful numbers. And, not unlike the experiences of other non-whites, Chinese and Filipino workers were lynched in California because they were perceived as the threat to white labor and culture. Because of this racist legacy the specter of discrimination remains and the ignorance about Asian communities continues to permeate the workplace.

For Asians and Latinos, race and national origin discrimination are inseparable. From the internment of 120,000 Japanese Americans (70% of whom were U.S. citizens) during World War II, to the segregated schools in the Southwest, to denied opportunities and promotions in the public and private sectors, to anti-Asian and anti-Latino violence, to immigration laws, racism has manifested itself in many ways. Unfortunately, in a period when many are questioning the presence and rights of non-white, immigrant workers, some Americans practice what I call “racialized patriotism” where they believe it is their patriotic duty to vilify, harass and otherwise harm those who look like some of us in this room. In addition, the nearly 1,000 post-9/11 charges EEOC has received, the cases we have filed and the millions of dollars we have recovered underscore this dynamic. Unfortunately, the tensions created by the global economy and the global migration of labor will also unleash racist rhetoric and violence as Americans attempt to deal with lost jobs.

The public debate around immigration policies also illustrate some of the racism inherent in some views. For example, the Christian Science Monitor recently reported that since the 1990’s the public’s views of Latino and Asian immigrants have become more positive, despite concerns over the drawbacks of immigration. Both groups are seen as hard-working and committed to family. Yet, in talking about undocumented immigrants, some in the public simply complain that there are too many Latinos, that Latinos aren’t speaking English enough, that there are too many Latinos in schools, etc. It appears that these “critics” simply don’t like Latinos regardless of their immigration status or place of birth.

The challenge for the EEOC is to ensure that all workers are protected. In California, for example, Latinos are 35% of the state population, and Asians are 12%, thereby constituting nearly 50% of the population. They are over represented in the service industry and low wage jobs and are very vulnerable, but our charges have yet to reflect those demographics and there is much work to be done.

On a national scale the challenge is also daunting. Of the current 300 million people in the U.S., 14% are Latino, 13% are African-American, and 4% are Asian.³ Last year the U.S. population reached the 300 million mark, but in 2050, the population is expected to be 400 million. That growth will be caused by an additional 18 million whites, 25 million Blacks, 27 million Asians, and 60 million Latinos. Minorities, especially Latinos and Asians, are disproportionately much younger than the white population, e.g. median age for white adults is 37; median age for Latino adults is 25. The Latino labor force (native-born and immigrants) will be 47.3 million in 2050, up from 20 million in 2005. The Asian labor force (native-born and immigrants) will be 16.1 million in 2050 as compared to 6.5 million in 2005. ⁴ Thus, EEOC must re-tool and adjust in order to properly serve these emerging communities. Having the linguistic and culturally competencies needed to do the job is paramount.

But race and/or national origin do not operate in a vacuum. Last fall my office filed four similar lawsuits, including one against Sizzler Restaurants, for the explicitly targeted harassment of Mexican women by non-Mexican men.⁵ Latinas were targeted as “Mexican bitches only good for sex”, physically and verbally harassed, and told “go back to where you come from if you don’t like it.” In essence, the sexual violence against Latinas is rationalized by racism and xenophobia.⁶ As the demographics change, EEOC must increase its linguistic and cultural competencies in order to help the victims of discrimination.

Similarly, some employers have fired one group in favor of another group because the latter is more vulnerable, less vocal, and more frightened. In EEOC v. Dai-Ichi Hotel (D.N.M.I.), my office alleged that Filipino hotel workers were fired after they engaged in protected activity under the NLRA and were replaced by less militant non-Filipino workers whose families would suffer retribution in their homelands if they fought for better labor conditions. That matter settled for $400,000. In another matter out of Commonwealth of the Northern Mariana Islands, EEOC v. Sako Corporation (D.N.M.I.), my office alleged that Filipino, Thai and Bangladeshi workers were fired and replaced with less militant Chinese workers who feared retribution against them and their families if they protested unlawful behavior. We obtained a $1,087,000 judgment in that matter.

The San Francisco District Office has filed lawsuits for Asians including a Sri Lankan doctor who was retaliated when the hospital’s lawyer initiated deportation proceedings after the doctor complained of race and national origin discrimination ⁷, a Vietnamese woman in Silicon Valley who was paid far less than the white male who previously held her managerial job ⁸, a Chinese woman denied promotion at a high end shoe store ⁹, a Filipino manager who was fired after she testified in a Latino employee’s successful national origin case ¹⁰, and four Pakistanis harassed at a steel factory. ¹¹ The last case resulted in a $1.11 million settlement. Similarly for Latinos, we have filed national origin cases for farm workers and others, and my colleagues around the country have filed several significant cases.¹²

In Spring 2002 my office received charges from 12 Filipino-American game testers who had been summarily fired from Sega after a non-Filipino employee undergoing possible discipline had complained that he believed his Filipino supervisor was giving favoritism to her relatives. Our investigation revealed that a Sega manager then instructed the unit head to draw up a chart – “the smoking gun” - and highlight the names of the Filipino workers – none of whom was related to the supervisor. Upon orders from Sega, Spherion, the contracting agency that employed them, told the workers on a Friday not to show up for work on the following Monday. Several of these young men had been working competently at Sega for years. Ironically, the Spherion employee who had to deliver the message was Filipino and he was instructed to find replacements. Here we were on the outskirts of Silicon Valley, in a city that is 35% Asian, in the Bay Area community of 400,000 Filipinos and in the 21st century, and Filipinos were summarily fired less than a mile from the EEOC District Office. On top of that, four workers who were friends of the non-Filipino employee were fired in retaliation after he had engaged in protected activity.

The charging parties were devastated. They had played by the rules. They were college students, good employees, the sons of immigrant workers. They had helped to build Sega’s wealth and couldn’t believe that this was happening in San Francisco. We filed the lawsuit against Sega and Spherion, and in Spring 2004 we announced a settlement of $600,000 - $456,000 to be paid by Sega and $144,000 by Spherion.¹³ As part of the Consent Decree, Spherion adopted EEOC’s “Guidelines on Contingent Workers” as part of its official nationwide policy, and eventually Sega offered permanent jobs to some charging parties. But this victory could not be achieved without the courage of brave victims like Beejay Enriquez, one of our speakers.

It will be many years before our nation can shed its legacy of racism and national origin discrimination but we have made strides. The growth in the Latino and Asian populations from now to 2050 can be viewed as a positive if we utilize all the talent possible. Citing the aforementioned statistics on growth, former San Antonio mayor and former Secretary of Housing and Urban Development, Henry Cisneros, recently stated in a speech last year in Seattle that the American future will represent a major demographic shift, but to benefit from the diversity, Americans have to believe that the future is bright and understand that in that diversity is rich talent. He added, “The best days are still ahead when we unleash all the talent, and American is an incubator of talent.”

EEOC plays a critical role in ensuring that our nation can “unleash that talent”. The E-Race Initiative urges us to understand and address the multifaceted and complex nature of racism in the 21st century so that discrimination doesn’t rob our nation of the contributions that a diverse population can make.

Thank you for this opportunity.

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Footnotes

¹ See, The Tarnished Golden Door, U.S. Commission on Civil Rights (1980).

²Although the Chinese Exclusion Act was repealed in 1943, the quota of only 100 Chinese per year replaced it.

³ U.S. Bureau of the Census (2006)

⁴ Bureau of Labor Statistics (2006).

⁵ EEOC v. Sizzler Restaurants (N.D. Cal.)

⁶ See, EEOC v. Quality Art LLC and Palestra Capital (D.Az.) (company subjected 27 female and Latino employees to widespread sexual harassment and national origin discrimination, and retaliated against employees who complained about discrimination by firing them and/or reporting them to INS; $3.5 million judgment)

⁷ EEOC v. Queen’s Medical Center (D. Hawaii) ($150,000 for Title VII; undisclosed amounts for state claims)

⁸ EEOC v. Borland Software (N.D. Cal.) ($80,000)

⁹ EEOC v. Bally North America (D. Hawaii) ($200,000)

¹⁰ EEOC v. Southern Pacific (N.D. Cal.) ($175,000)

¹¹ EEOC v. Herrick Corporation d/b/a Stockton Steel (E.D. Cal.)

¹² See for example,

EEOC v. Woodbine Memorial Hospital (D.Mo.) (Filipino nurses on H-1 visas paid less than white U.S. born nurses for doing the same work; $2.1 million settlement); (St. Louis District Office)

EEOC v. American Seafood Company (D.Wa.) (employer subjected 18 Vietnamese-American at-sea workers to discriminatory conditions; settled for $1.25 million); (then Seattle District Office)

EEOC v. Anchor Coin, dba Colorado Central Station Casino (D.Colo.) (harshly applied English-only policy and harassment of housekeeping staff; $1.5 million settlement); (then Denver District Office)

EEOC v. Qwest Communications (D.Ore.) (Latino CP’s denied promotion and assignment and were retaliated against for filing a charge; settled for $400,000.); (then Seattle District Office)

EEOC v. Premier Operating Services (N.D. Tex.) (Latino employees hired for their bilinguall skills were punished for speaking Spanish to each other, harassment; verdict $700,000); (Dallas District Office)

EEOC v. University of Incarnate Word (Tex.) (English-only policy and other harassment of Latino employees; settled for $2.44 million) (then San Antonio District office)

¹³ EEOC v. Sega, Spherion (N.D. Cal.)

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This page was last modified on April 9, 2007.