Written Testimony of M. Kate Boehringer Supervisory Trial Attorney EEOC Baltimore Field Office

Meeting of June 22, 2011 - Disparate Treatment in Hiring

Good morning, Chair Berrien, Commissioners Ishimaru, Feldblum, Barker, and Lipnic, and General Counsel Lopez. My name is Kate Boehringer. I am an EEOC Supervisory Trial Attorney from the Baltimore Field Office. I work with EEOC attorneys and investigators throughout the Philadelphia District Office, which includes offices in Baltimore, Philadelphia, Pittsburgh, and Cleveland. Thank you for inviting me to speak to you this morning about the EEOC's litigation against Area Temps, a temporary placement agency in Cleveland, Ohio.

At the outset, I would like to thank EEOC Investigator Lynn Gagyi and EEOC Trial Attorney Jeffrey Stern of the Cleveland Field Office for their hard work in investigating and litigating the case against Area Temps.

In September 2007, EEOC filed a complaint against Area Temps, a temporary placement agency. EEOC alleged that Area Temps classified temporary workers and selected them for jobs based on their race, gender, and age. More specifically, EEOC alleged that when companies contacted Area Temps asking them to refer temporary workers of a particular race, gender, and age, Area Temps complied with those discriminatory requests. In its complaint, EEOC also alleged that Area Temps fired two of its employees because those employees opposed its discriminatory practices or participated in EEOC's investigation of Area Temps. Others who were adversely affected by discriminatory or retaliatory practices at Area Temps appeared in the litigation as plaintiff-intervenors.

Although the case did not go to trial, the record includes affidavits from Area Temps employees who selected temporary workers for jobs with various companies. Area Temps employees provided the following information. According to the witnesses, Area Temps directed its staff to select temporary workers for jobs, and to place them with certain companies, based on race, gender, and age. Some reported that the company thought such practices were necessary to comply with the customers' preferences - even if those preferences were discriminatory. Area Temps staff used photographs of the temporary workers, maintained in the Area Temps electronic database, to determine the workers' race and gender. Code words, phrases, and abbreviations were used to communicate the need to select temporary workers of a particular race or gender. For example, witnesses reported that when they needed a white worker for a job, they asked for a "hockey player, a "vanilla cupcake," or someone "like you and me." Preferences for white workers were indicated by writing a "W" on Rolodex cards for certain companies or drawing smiley faces on their job orders.

In July 2010, EEOC obtained a Consent Decree that resolved its claims against Area Temps. As part of the Decree, Area Temps agreed to pay $650,000 in monetary relief, of which $579,650.00 would be paid into a Claim Fund to compensate EEOC's claimants.

In the Consent Decree, EEOC also obtained significant injunctive relief which was designed to eliminate any discriminatory referral practices at Area Temps. Seeking and obtaining effective injunctive relief is an essential part of EEOC's litigation program. While the Decree provides for monitoring, reporting, and training, specific provisions were developed to eliminate the likelihood that Area Temps will engage in discriminatory practices in the future. For example, the Consent Decree requires Area Temps to send a letter to its customers declaring that Area Temps will not engage in discriminatory placement practices and that, if an Area Temps employee offered to provide the customer with a worker of a certain race, gender, or age, the customer should contact the President of Area Temps directly. Additionally, the Decree requires Area Temps to create and maintain a computerized database to record an applicant's date of birth, race, gender, and positions sought. Area Temps must periodically provide that database to EEOC so that the Commission can detect any discriminatory referral patterns. As part of the Decree, Area Temps also agreed to subject itself to unannounced and periodic "tests" during which a third-party, posing as a customer, will contact Area Temps and request temporary workers of a particular race, gender, national origin, or age. Following each "test," the third-party is required to provide written results directly to EEOC, including a detailed description of how Area Temps employees responded to its discriminatory requests. Importantly, the Decree prohibits Area Temps from using photographs of workers as a selection tool. Specifically, the Decree states that Area Temps staff cannot have access to photographs of workers until after those workers have been placed on an assignment. Further, only Area Temps employees responsible for maintaining the database have access to the workers' photographs and may not share them with anyone who selects workers for employment. The Decree also requires Area Temps to provide EEOC with a list of staff members who have access to such photographs, a list of staff members who do not have such access, and a description of security measures Area Temps takes to limit access to, and use of, such photographs. Finally, the Decree requires Area Temps to send out an "applicant recruitment notice" every three months to 19 different organizations in an effort to encourage diversity in the Area Temps applicant pool.

As you will soon hear from Ana Lopez-Rodriguez, Area Temps employees were pressured to engage in discriminatory placement practices. Some may not have realized that what they were doing was unlawful; Ms. Lopez-Rodriguez was assured that such practices were legal because it simply involved giving customers what they wanted. Of course, we know that is not true; when a temporary agency complies with a customer's request for workers of a particular race, gender, or age, it has violated our anti-discrimination laws. However, discovering and investigating a temporary agency's discriminatory practices is challenging. EEOC discovered, investigated, litigated, and resolved this case favorably not only because of the hard work and dedication of EEOC's enforcement staff and legal unit, but also with the help of people like Ana Lopez-Rodriguez who took a risk, came forward, and told us the truth. I am honored to be here today with Ana Lopez-Rodriguez, a former Area Temps employee who will talk about her experience.

Thank you.