Remarks of James Lee

Meeting of November 16, 2005, Washington D.C. on Operations in Wake of Hurricane Katrina and Revisions to EEO-1 Report

My name is James Lee and I am the Deputy General Counsel of the EEOC. I have been asked to make some brief comments today regarding the Office of General Counsel's usage of EEO-1 data during litigation of Commission cases.

OGC recognizes that the EEO-1 Report can help attorneys and investigators identify in conjunction with other available evidence employers that may be significantly under employing women or minorities. It was an OGC employee in fact that created the Commission's internal EEO-1 Desktop software tool and we support continuing efforts to improve staff access to EEO-1 data.

However, our enforcement litigation targets particular employment decisions for a particular actionable period; for example, hiring into management from March 2001 to the present. In contrast, the EEO-1 Report categorizes current employees by sex, race, ethnicity, and job group at a single point in time - it's a snapshot that reflects an amalgam of employment decisions (hiring, transfers, promotions, discharges, voluntary resignations, etc.) over time. Many of these employment decisions may be so old that they are no longer actionable. This problem with snapshot data was recognized almost as soon as statistical evidence started being used; the Supreme Court noted the problem in Hazelwood School Dist. v. U.S., 433 U.S. 299, 309 (1977).

In addition to the temporal problem of using snapshots, frequently the EEO-1 job groups are too broad to be useful in litigation. Professionals include doctors and lawyers, two positions that clearly do not belong in the same labor market; Service Workers include police detectives and janitors.

In preparing a case for trial, we obtain personnel records, often in electronic form, that identify who was hired for what jobs, when they were hired, and if possible, who else applied for those jobs. If applications do not exist, we rely on Census data to estimate availability. In addition, we frequently need information on the qualifications of these people to prepare sound statistical analyses.

In conclusion, while the EEO-1 Report is useful in identifying cases where an employer is employing women or minorities in numbers markedly different than their availability in the labor market, it is just one tool in our arsenal. We find that relying upon the actual employment data produced by the employer during discovery proves most effective.

Thank you for your time and attention.

This page was last modified on November 17, 2005.